[ Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Hatton , Slip Opinion No. 2022

- Ohio

- 3991.]

NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O . 2022

- O HIO - 3991
T HE S TATE OF O HIO , A PPELLEE v . H ATTON , A PPELLANT . [ Unti l this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Hatton , Slip Opinion No. 2022

- Ohio

- 3991 .] Crim.R. 33(B)

—

R.C. 2953.21 and 2953.23

— The trial court and court of appeals abused their discretion by applying res judicata to bar defendant’s claims

— Judgment reversed and cause remanded to the trial court

. (No. 2021

- 0704

— Submitted March 30, 2022

— Decided November 10, 20 22 .)
A PPEAL from the Court of Appeals for Pickaway County, No. 19CA34,
2021

- Ohio

- 1416

.

_____________________ O’ C ONNOR , C. J. {¶ 1} A ppellant, Martin L. Hatton, is serving a n aggregate 39

- year prison
sentence for his 1997 convictions for aggravated burglary, kidnapping, rape, felonious assault, and theft

— offenses that he ha s consistently maintained he did
not commit

. H atton has unsuccessfully challenged his convictions on direct appeal ,S UPREME C OURT OF O HIO

2 in a timely petition for postconviction relief , and in numerous other postconviction filings. {¶ 2} I n 2018, more than 20 years after his convictions, Hatton discovered through a public

- records request a memorandum from Raman Tejwani, the DNA expert who testified for the state at Hatton’s trial
, to the Pickaway County
prosecu tor dated June 22, 1998 . In the memo, Tejwani acknowledged that the mixed samples (i.e., DNA samples that included DNA from more than one contributor) about which she had testified at Hatton’s trial contained male DNA
from someone other than Hatton or Ricky Dunn, whom the state had identified as
the second of two participants in the offenses and against whom the state had also
obtained convictions

. {¶ 3} Based primarily on his discovery of th e Tejwani memo, Hatton filed
a motion for leave to file a motion for a new trial and a successive petition for postconviction relief , both of which t h e Pickaway County Court of Common Pleas
deni ed without a hearing

. T he Fourth District Court of Appeals affirmed t h e trial
court’s judgment

. {¶ 4} W e reverse the court of appeals’ judgment and remand this matter to
the trial court for further proceedings

. Relevant Background Trial proceedings {¶ 5} Following a jury trial i n 1997, Hatton w as convicted of aggravated burglary, kidnapping, rape, felonious assau lt, and theft

. The state’s theory of the
case was that Hatton and Dunn entered the Circleville home of P.C. and S.C. , that Hatton raped their 17

- year

- old daughter J.C. at knifepoint in her upstairs bedroom , and that Hatton then forced her downstairs to the family room , where Dunn raped
her. J.C.’s trial testimony tracked the state’s theory, although she could not identify
Hatton as the man who had raped her in her bedroom.January Term, 2022

3 {¶ 6} During the crimes, J.C.’s father, P.C., walked downstairs to
invest igate sounds he had heard from his bedroom

. From the stairway , P.C. observed one person , whom he could not identify, running from the house

. However, P.C. was able to restrain a second person

— later identified as Dunn

— who ran into him after he reached the bottom of the staircase. P.C. testified that while he and Dunn struggl ed , Dunn scream ed out the door, “ Marty, Marty, Marty!”
and stated , “I came with Marty Hatton.” Meanwhile , J.C. ran upstairs to her mother, and they called 9

- 1

- 1. {¶ 7} Sergeant Wayne Gray , the first police officer to arrive at the scene , found P.C. standing over Dunn in the foyer. Dunn was screaming for “Marty,” and
he told Sergeant Gray he was there with “Marty Hatton.” The officers arrested Dunn and began searching for the second suspect

. {¶ 8} A more complete description of the testimony from Hatton’ s trial , including Dunn’s incriminating testimony and evidence that Dunn and Hatton were together on the night of the offenses , may be found in State v. Hatton , 4th Dist. Pickaway No. 97 CA 34, 1999 WL 253450 (Apr. 19, 1999) (“ Hatton I ”)

. Here, though, we focus on the DNA evidence presented at Hatton’s trial

. {¶ 9} T he state called Tejwani, a criminalist employed by the city of
Columbu s ’s crime lab , as an expert witness. T he crime lab had received from the Circleville Police Department blood samples from Hatton, Dunn, and J.C. ; vaginal
swabs and underwear collected from J.C. ; and a purported semen stain on a piece of fabric cut by the police from a sweatshirt that Hatton was allegedly wearing on the night of the offenses

. The stain from the sweatshirt did not contain enough cells to extract DNA, and no conclusions could be drawn regarding its source. The lab performed a differenti al extraction of the mixed samples on the vaginal swabs and
underwear to separate the female and male fractions, and it used a polymerase chain
reaction to test the DNA.S UPREME C OURT OF O HIO

4 {¶ 10} Tejwani testified that the male fraction s from the vaginal swabs and
underwear “could not give information for the contributor [s] ” because they w ere mixed sample s and that she could “neither exclude nor include anybody” as a contributor to those mixed samples

. With respect to those mixed samples , t he table
of test results included in the lab report signed by Tejwani , provided to Hatton’s counsel before trial, and admitted as evidence stated only , “ I nconclusive.” {¶ 11} During her trial testi mony , Tejwani referred to her notes , which t he state had not produced to Hatton but which Tejwani agreed to provide to Hatton’s attorney at the conclusion of her testimony

. {¶ 12} The next day, Hatton called his own forensic expert , Larry M.
Dehus , who had reviewed the lab report and the notes that Tejwani had provided to
defense counsel th e pr evious day. He testifi ed that “there was information in the notes that was not included in the repor t , ” specifically the presence of a faint B
allele in the mixed

- sample male DNA f ractions at genetic marker D7S8. According

to Dehus , the B allele was significant because it could not have come from Hatton, Dunn, or J.C. , all of whom ha d only A allel es at that genetic marke r

. He therefore opined that someone other than Hatton and Dunn “was [a] contributor to semen in those samples.” {¶ 13} The state neither offered a rebuttal to Dehus’s testimony that the mixed samples contained DNA from a male contributor other than Hatton or Dunn nor suggested an alternative source for th e additional DNA. In fact , t he prosecutor ignor e d Dehus’s testimony about the significance of the B allele altogether , never once mentioning the B allele in his cross

- examination of Dehus . Instead, the prosecutor focused almost exclusively on impeaching Dehus’s qualifications

. I n his closing argument, the prose cutor told the jury that Dehus’s testimony was no different from Tejwani’s testimony

— that the DNA test results did not conclusively
include or exclude Hatton. But the prosecutor then flatly rejected the defense’s argument that someone other than Hatton and Dunn was involved: “There was noJanuary Term, 2022

5 third person. It was Ricky Dunn and Marty Hatton inside that residence * * * beyond any reasonable doubt.” Hatton’s direct appeal and initial petition for postconviction relief {¶ 14} T he Fourth District affirmed Hatton’s convictions on direct appeal.
Hatton I , 4th Dist. Pickaway No. 97 CA 34, 1999 WL 253450

. As relevant here, the court of appeals rejected Hatton’s argument that the state ’s fail ure t o disclose
the existence of the B allele prior to trial deprived him of a fair trial

. Id. at *20

- 21.
It stated that unlike a typical violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (196 3 ), in which the jury is denied the opportunity to hear about the alleged exculpatory evidence , Hatto n’s expert witness was able to testify at trial about the B allele and its significance

. Hatton I at *21. {¶ 15} In 1998, w hile his direct appeal was pending in the court of appeals , Hatton fi led a petition for postconviction relief in the trial court . There, h e again
argu ed that the state had “ failed to disclose relevant, exculpatory evidence ”

— the presence of the B allele

— “i n time for its effective use at tria l

. ” In su pport of his petition , Hatton filed an affidavit from molecular b iologist Christie T. Davis . Davis

a greed with Tejwani ’s characterization of the male DNA fraction s from the mixed samples as “inconclusive
, ” but she also state d that the B allele must have come from someone other than Hatton or Dunn

. After the court of appeals affirmed Hatton’s convictions in his direct appeal, t he trial court denied Hatton’s pe tition for postconvition relief without holding a hearing , characterizing the arguments in his petition as “basically identical” to those he had unsuccessfully raised on appeal

. T he Fourth District affirmed that judgment , stating that Davis’s affidavit was “not altogether different from” Dehus’s testimony and did not demonstrate that Tejwani
had testi fied fals ely

. State v. Hatton , 4th Dist. Pickaway No. 00CA10, 2000 WL
1152236 , *5 (Aug. 4, 2000).S UPREME C OURT OF O HIO

6 The Tejwani memo {¶ 16} In 2018, in response to a public

- records request, Hatton received for
the first time a copy of a memo from Tejwani to the county prosecutor

. T he memo

was dated June 22, 1998 , a date on which both Hatton’s direct appeal and his first petition for postconvi ction relief were pending. The memo , which Tejwani wrote following a phone conversation she had with Hatton’s postconviction counsel,
Keith Yeazel , states:

Mr. Yeazel was concerned about the origin of the fain t “ B ” type observed at the D7S8 locus in sample 5 (vaginal swabs, male fraction) as reported in the Cri m e Lab log , page 3. This type was not observed in the known blood samples of [J.C.] , Martin L. Hatton or Ricky D. Du nn. The male fraction of the vaginal swa bs consisted of a mixed DNA sample and no information regarding the contributor could be obtained from the DNA typing results which were reported as “inconclusive” in the Lab Report

.

{¶ 17} In the memo, Tejwani implicitly inform ed the prosecutor that
Hatton’s at torney was asking about an element of the DNA test results that she had

not included in the lab report or testified about at trial , and she also acknowledged
that neither Hatton nor Dunn could have con t ributed the B allele that was found in
the mixed samples , because a B allele was “not observed in the known blood samples

. ” The memo was the first and only acknowledgment in the record by a
state’s witness that the B allele indicated that someone other than Hatton or Dunn
had contributed to the male DNA in the mixed samples

. T he prosecutor did not disclose the Tejwani memo to Hatton’s trial, appellate, or postconviction counsel

. And Hatton did not learn of it s existence for more than 20 years.January Term, 2022

7 Hatton’s 2019 motion for leave t o file a motion f or a new trial and his petition for postconviction relief {¶ 18} In 20 19 , based primarily on his discovery of the Tejwani memo , 1
Hatton filed a motion for leave to file a motion for a new trial and a petition for postconviction relief

. Hatton made similar argument s in both filings and requested an evidentiary hearing and a new trial

. Hatton argue d that the memo contradic ted Tejwani’s trial testimony that the DNA test results were inconclusive and that the

memo demonstrated that the test results exclude d him as a contributor to the mixed samples

. H e also argued that t he state’s failure to disclose that material , exculpatory information and its presentation of false testimony from Tejwani violated his right to a fair trial. Finally, h e preemptively argued that res judic ata should not apply , because the Tejwani memo ha d not been “subject to inclusion or review at any level

. ” {¶ 19} T he trial court addressed Hatton’s motion and postconviction petition together , and it denied both without a hearing

. Without distinguish ing
between the motion and the petition , t he court summarily rejected Hatton’s arguments that the memo contradicted Tejwani’s trial testimony and that it
demonstra ted that the test results excluded him as a source of the DNA

. It also held
that res judicata barred Hatton’s arguments because the memo was “ not really new”
evidence and because the “issue [had] been litigated and decided before

. ” On appeal, the Fourth District agreed that res judicata barred Hatton’s requested relief
, and it affirmed the trial court’s judgment . 2021

- Ohio

- 1416, ¶ 29, 39, 46

.

1

. In support of his motion and petition, Hatton also submitte d evidence that in 2009, Dunn recanted his testimony that implicated Hatton in the offenses, but both the trial court and the court of appeals had previously considered th e recantation and found it not credible. See State v. Hatton , 4th Dist. Pickaway No. 13CA26, 2014

- Ohio

- 3601. H atton also submitted a purportedly newly discovered police report in which a detective noted that he and another officer did not believe Dunn’s initial statements to them that Dunn had had consensual sex with J.C

.S UPREME C OURT OF O HIO

8 {¶ 20} In this discretionary appea l , Hatton presents three propositions of
law. He asks this cour t to hold that (1) the state must always disclose DNA test
results that exclude a defendant as a contributor to an evidentiary DNA sample , (2) the state must disclose DNA test results and analys e s if it learns, even after trial, that its expert testified contrary to those results , and (3) a trial court errs by denying a petition for postconviction relief when the petitioner has established with newly
discovered evidence that the conviction was based on materially false evidence. Analysis {¶ 21} We do no t reach Hatton’s propositions of law , which concern the
merits of whether Hatton is entitled to a new trial under Crim.R. 33 or R.C. 2953.21 and 2953.23, because determinative threshold issues require us to reverse the court of appeals’ judgment and remand this matter to the trial court for further proceedings.

Res judicata does not bar Hatton’s motion or his petition {¶ 22} Before directly addressing Hatton’s motion for leave to file a motion
for a new trial and his petition for postconviction relief, we first re ject the trial court’s and court of appeals’ determinations that res judicata precludes Hatton from
seek ing a new trial and postconviction relief based on the recently discovered Tejwani memo

. The doctrine of res judicata precludes a 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” at trial or on direc t appeal. State v. Szefcyk , 77 Ohio St.3d 93, 671 N.E.2d 233 (1996) , syllabus

. Res judicata applies to motions for a new trial , s ee, e.g ., State v. Rodriguez , 8th Dist. Cuyahoga No. 108048, 2019

- Ohio

- 5117, ¶ 23 , and petitions for postconviction relief, s ee State v. Reynolds , 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997). {¶ 23} The trial court here held that res judicata bars Hatton’s claims
because his purportedly “ ‘new evidence’ is not really new” and because hisJanuary Term, 2022

9 arguments have been litigated before. T he court o f appeals likewise concluded that res judicata bar s Hatton’s claims

. It reasoned , “ [T] he pertinent information from the [Tejwani] memo was known and available to [Hatton] during his trial

. ” 2021

- Ohio

- 1416 at ¶ 28 . It also stated that Hatton had challenged, albeit unsuccessfully, Tejwani’s credibility in his 1998 petition for postconviction relief

. I d. at ¶ 29. Both
courts’ conclusions, however, are based on a fundamental misunderstanding of the Tejwani memo and its import

. {¶ 24} While the existence o f the B allele and its omission from the lab report and Tejwani’s trial testimony did permeate Hatton’s arguments on direct appeal and in his 1998 petition for postconviction relief, the Tejwani memo does more than simply restate the existence of the B all ele and reiterate Tejwani’s testimony that the DNA test results were inconclusive. The new information in the memo is the acknowledgment by Tejwani

— the state’s expert witness

— that the B allele could not have originated from Hatton or Dunn and that , theref ore, DNA from
another male was present in the mixed samples. T hat new information creates an obvious hole in the state’s narrative that two men entered J.C.’s home, that those

two men raped J.C. and left their DNA, and that those two men were Hatton and
D unn. If the male DNA in the mixed samples was wholly contributed by two men, one of whom was Dunn, then Tejwani’s acknowledgment of the B allele and its significance would mean that Hatton could not have been the other contributor. 2 {¶ 25} Tejwani’s acknowledgment in the memo of the significance of the B allele, which was glaringly absent from both the lab report and her trial testimony,

2

. This does n ot mean that the test results necessarily exonerate Hatton, because w e do not know whether the mixed samples contained DNA from two men or from more than two men. Davis stated that the male fraction indicated “a mixture of DNA from at least two individual s,” and Tejwani could say only that there was “more than one donor.” Dehus stated that someone other than Hatton and Dunn must have contributed to the male fraction of the samples. Davis also acknowledged scenarios under which DNA from a male, unconnected to the offenses, could have ended up in the mixed samples. That said, no evidence was introduced at trial to identify any innocent source of DNA in the male fraction of t he samples.S UPREME C OURT OF O HIO

10 is qualitatively different than bare knowledge of the B allele’s presence. Had he
been a rmed with the wi thheld acknowledgement by the state’s own expert , Hatton
could have impeach ed Tejwani’s incomplete testimony and buttress ed , if not outrightly confirm ed , defense expert Dehus’s testimony about the DNA test results, the substance of which the prosecutor ess entially ignored. Additionally, had Tejwani’s acknowledgement come out at trial, it likely would have compelled the state to offer some explanation for the additional or alternative contributor to the mixed samples , given the state’s theory that Dunn and Hatton were the only two offenders

. Tejwani’s acknowledgment and its potential effect on Hatton’s trial have not been, and could not have been, litigated before. Accordingly, we conclude that both the trial court and the court of appeals abused their dis cretion by applying res judicata to preclude Hatton from arguing for a new trial and postconviction
relief based on newly discovered evidence.

Motion for leave to file a motion for a new trial {¶ 26} We now turn to Hatton’s motion for leave to file a motion for a new trial

. {¶ 27} C rim .R. 33(A) stat es: “A new trial may be granted on motion of the defendant for any of the following causes affecting materially the defendant’s substantial rights: * * * (6) When new evidence material to the defense is discovered which the defendant could not with reasonable diligence have discovered and produced at the trial.” Generally, a motion for a new trial based on newly discovered evidenc e must be filed within 120 days after the jury verdict was rendered or the trial court’s decision was issued if the defendant waived the right to a jury trial. Crim.R. 33(B). {¶ 28} A n untimely motion for a new trial based on newly discovered
evidence may be fil ed only if the defendant first establishes by clear and convincing
evidence that he was unavoidably prevented from discover ing the evidence within
the 120

- day period

. Id. If the trial court determines that the defendant has met thatJanuary Term, 2022

11 burden and grants a motion for leave to file a motion for a new trial , the n the
defendant m ust file that motion within seven days. Id

. In th e motion for a new
trial , the defendant must show that the newly discovered evidence discloses “ ‘ “a strong probability that it will change the result if a new trial is granted” ’ ” and that it is not “ ‘ “merely cumulative to former evidence.” ’ ” State v. LaMar , 95 Ohio St.3d 181, 2002

- Ohio

- 2128, 767 N.E.2d 166, ¶ 85, quoting State v . Hawkins , 66 Ohio St.3d 339, 350 , 612 N.E.2d 1227 (1993), quoting State v. Petro , 148 Ohio St.
505 , 76 N.E.2d 370 (1947), syllabus. The defendant is entitled to an evidentiary hearing when the allegations in the motion demonstrate substantive grounds for
relief. State v. Calhoun , 86 Ohio St. 3 d 279, 289, 714 N.E.2d 905 (1999)

. {¶ 29} Because Hatton seeks a new trial more than 20 years after his
conviction s, he must comply with Crim.R. 33(B)’s two

- step proc ess for f i ling an untimely motion

. Appellate review of a trial court’s ruling on a motion for leave
to file a motion for a new trial is conducted u nder an abuse

- of

- discretion standard.
State v. Townsend , 10th Dist. Franklin No. 08AP

- 371, 2008

- Ohio

- 6518, ¶ 8, citing
State v. Pinkerman , 88 Ohio App.3d 158, 160, 623 N.E.2d 643 (4th Dist.1993), citing State v. Wright , 2d Dist. Greene No. 90 CA 135, 1992 WL 66385 (Mar. 31, 1992). An abuse of discretion is more than an error of law or judgment; it implies
that the court ’ s attitude is unreasonable, arbitra ry, or unconscionable. Blakemore
v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶ 30} When a defendant seeks leave to file a motion for a new trial under Crim.R. 33(B), the trial court may not consider the merits of the proposed motion
for a new t rial until after it grants the motion for leave. State v. Bethel , 167 Ohio
St.3d 362 , 2022

- Ohio

- 783, 192 N.E.3d 470 , ¶ 41, citing State v. Brown , 8th Dist. Cuyahoga No. 95253, 2011

- Ohio

- 1080, ¶ 14. T he 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

.S UPREME C OURT OF O HIO

12 {¶ 31} I n support of his motion for leave to file a motion for a new trial , Hatton submitted numerous documents, including the Tejwani memo and a n affidavit in which he detailed his initial receipt of the memo in 2018. Hatton could
not have discover ed the Tejwani memo within 120 days after the jury ’s verdict , because Tejwani did not write it until after that time had elapsed

. And t hen, after Tejwani drafted the memo and transmitted it to the prosecutor, the state withheld
the memo from Hatton, despite its relevance to arguments in Hatton’s then

- pending direct appeal and petition for pos t conviction relief. We have held that “a defendant may satisfy the ‘unavoidably prevented’ requirement contained in Crim.R. 33(B) by establishing that t he prosecution suppressed the evidence on which the defendant would rely in seeking a new trial.” State v. McNeal , __ Ohio St.3d __, 2022

- Ohio

2703, __ N.E.3d __, ¶ 17, citing Bethel at ¶ 25, 59. T he state does not dispute
Hatton ’s assertion that he was unavoidably prevented from discovering the Tejwani

memo . Instead, it continues to assert that it had no duty to turn over the memo

. {¶ 32} T he trial court ignored Crim.R. 33(B)’ s two

- step process and sidestepped the preliminary question whether Hatton had demons trated that he was unavoidably prevented from discovering the evidence on which he seeks to rely

. Instead , the court improperly jumped to the merits of Hatton’s claim for a new trial
, which the court reviewed under the standard stated in Petro , 148 Ohio St. 505, 76
N.E.2d 370 , at syllabus:

To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merel y cumulative to formerJanuary Term, 2022

13 evidence, and (6) does not merely impeach or contradict the former
evidence.

T he court held that the Tejwani memo was not outcome determinative , because “DNA evidence was not essential” to the state’s case and the jury was able to

c onvict Hatton based on other evidence. The court stated that Hatton’s “ ‘new evidence’ comes nowhere near meeting the conditions outlined * * * in Petro .” {¶ 33} Although the Petro standard will apply in resolving the merits of
Hatton ’s motion for a new trial under Crim.R. 33(A)(6), Hatton was not required to satisfy that standard to obtain leave to file a motion for a new trial. He was required to establish only that he was unavoidably prevented from discovering the
evidence on which he seeks to base his motion. Un less and un til a trial court grant s a defendant leave to file a motion for a new trial , the merits of the new

- trial claim

are not before the court. See Bethel , 167 Ohio St.3d 362, 2022

- Ohio

- 783, 192 N.E.3d 470, at ¶ 41 (“The trial cour t should not have purported to deny Bethel’s

new

- trial motion on its merits, because the court never permitted Bethel to file that motion”)

. As the Fourth District noted in this case , t he state conceded th at the trial

court err ed by failing to address the narrow, preliminary question before it . 2021

- Ohio

- 1416 at ¶ 10

- 11

. {¶ 34} Hatton supported his motion for leave to file a motion for a new trial
with uncontradicted evidence that, on its face, demonstrate s that he was unavoidably prevente d from discovering the Tejwani memo

— the primary evidence upon which he seeks to base his motion for a new trial

— within the time for filing
a motion for a new trial. By overlooking Hatton’s satisfaction of that burden and denying his motion for leave to fi le a motion for new trial , the trial court abused its
discretion

. {¶ 35} Questions about whether Hatton’s newly discovered evidence
satisf ies the remaining elements of the Petro standard, including whether theS UPREME C OURT OF O HIO

14 Tejwani memo creates a strong probability that it would change the result if a new trial were granted , remain for the trial court to decide when adjudicating the motion
for a new trial itself

. Thus, we express no opinion on whether Hatton should
ultimate ly prevail on the mer its of his motion for a new trial

. {¶ 36} Nevertheless , we do hold that Hatton is entitled to an evidentiary hearing on his motion

. The trial court ultimately and i mproperly decid ed Hatton’s
motion for a new trial on the merits, concluding that the Tejwani memo was not outcome determinative, and it also employed the wrong analysis to reach that
conclu sion. W hether suppressed evidence is outcome determinative for purposes
of a motion for a new trial is not determin ed by whether sufficient other evidence supported the jury ’s verdict but by whether the suppressed evidence, when viewed in the context of the whole case, is sufficient to undermine confidence in the verdict.
McNeal , __ Ohio St.3d __, 2022

- Ohio

- 2703, __ N .E.3d __, at ¶ 21. As we stated above, the Tejwani memo illuminated a substantial hole in the state’s theory of its

case against Hatton , and Hatton reasonably alleged, and is entitled to an opportunity

to prove at an evidentiary hearing, that the new info rmation contained in the memo, had it been available to him at trial, would likely have resulted in a different

outcome. We conclude that Hatton’s motion alleged sufficient substantive grounds for relief to warrant a hearing

.

Petition for postconviction relief {¶ 37} Finally, we turn to Hatton ’s petition for postconviction relief under
R.C. 2953.21 and 2953.23

. Pursuant to R.C. 2953.21(A)(1)(a) , a convicted
defendant who asserts a denial or infringement of constitutional rights sufficient to rend er 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. A petitioner, like Hatton , who file s a petition more than 365 days after the trial transcript wa s fi led in the court of appeals in his direct appeal or who files a successive petition , must satisfy the jurisdiction al requirements in R.C.January Term, 2022

15 2953.23(A)(1) or (2) for an untimely, second, or successive petition for postconviction relief. Bethel , 167 Ohio St.3d 362 , 2022

- Ohio

- 783, 192 N.E.3d 470 , at ¶ 20 ; R.C. 2953.21(A) and 2953.23(A)

. To warrant an evidentiary hearing on a petition for postconviction relief, the peti tioner bears the burden of producing
evidence that demonstrate s a cognizable claim of constitutional error. State v.
Sidibeh , 10th Dist. Franklin No. 12AP

- 498, 2013

- Ohio

- 2309, ¶ 13. {¶ 38} We review a decision to grant or deny a petition for postconviction
relie f, including the decision whether to afford the petitioner a hearing, under an
abuse

- of

- discretion standard. State v. Gondor , 112 Ohio St.3d 377, 2006

- Ohio

6679, 860 N.E.2d 77, ¶ 51

- 52, 58. But whether a trial court has subject

- matter jurisdiction to entertain an untimely, second, or successive petition for postconviction relief is a question of law, which we review de novo. State v. Apanovitch , 155 Ohio St.3d 358, 2018

- Ohio

- 4744, 121 N.E.3 d 351, ¶ 24. {¶ 39} Hatton invoked R.C. 2953.23(A)(1) as the basis for the trial court’s jurisdiction to consider his petition

. 3 To satisfy R.C. 2953.23(A)(1 ) , Hatton was required to show (1) that he was unavoidably prevented from discove ring the facts
on which he must rely to present his claim for relief and (2) that but for
constitutional error at trial , no reasonable fact

- finder would have found him guilty.
T he “unavoidably prevented” requirement in R.C. 2953.23(A)(1) mirrors the “unavoidably prevented” requirement in Crim.R. 33(B). Bethel at ¶ 59, citing State
v. Barnes , 5th Dist. Muskingum No. CT2017

- 0092, 2018

- Ohio

- 1585, ¶ 28. {¶ 40} Neither t he trial court nor t he court of appeals directly addre s s ed whether Hatton satisfied one of the exceptions in R.C. 2953.23(A) to establish the trial court’s jurisdiction to consider an untimely and successive petition for

3 . The trial court erroneously stated that Hatton relied on R.C. 2953.23(A)(2), which is inapplicable here. See Apanovitch at ¶ 29 (holding that R.C. 2953.23(A)(2) confers jurisdiction only over a select class of offenders who applied for DNA testing under R.C. 2953.71 through 2953.81 or under former R.C. 2953.82).S UPREME C OURT OF O HIO

16 postconviction relief. Although the trial court stated that Hatton’s “ ‘new evidence’ is not really new,” it did so in the context of applying res judicata, not in the context
of assessing its jurisdiction under R.C. 2953.23. Similarly, t he court of appeals
alluded to its finding that the Tejwani memo did not contain facts previously unavailable to Hatton, b ut then, rather than holding that the trial court lacked jurisdiction, the court of appeals stated, “ Therefore, appellant’s petition herein is also barred by res jud icata .” 2021

- Ohio

- 1416 at ¶ 38

. {¶ 41} Having determined that the trial court and the court of appeals

a bused their discretion by applying res judicata to preclude Hatton’s claims, we

must reverse the court of appeals’ decision affirming the dismissal of Hatton’ s petition for postconviction relief on that basis . On remand, the trial court must begin by answering the threshold question

— whether Hatton satisfied the jurisdictional requirements of R.C. 2953.23(A)(1) to file an untimely and successive petition for po stconviction relief

. I n answering that question , the court
should avoid indulging in the mischaracterization s of the Tejwani memo that permeated the lower courts’ prior decisions in this matter and that we have rejected in our discussion of res judicat a above

. Conclusion {¶ 42} For these reasons, we reverse the judgment of the Fourth District Court of Appeals and remand this matter to the trial court with instructions that it grant Hatton’s motion for leave to file a motion for a new trial ; afford Hatton an evidentiary hearing on his motion for a new trial ; and determine whether Hatton has satisfied the jurisdictional requirements for an untimely and successive petition for postconviction relief under R.C. 2953.23(A)(1), and if so, determine the merits of that petition. Judgment r eversed
and cause remanded.
F IS C HER , D E W INE , and S TEWART , JJ., concur.January Term, 2022

17 D ONNELLY , J., concurs, with an opinion joined by B RUNNER , J.
K ENNEDY , J., concurs in judgment only.

_________________ D ONNELLY , J., concurring. {¶ 43} I fully join the majority opinion. I write separately to note that a
sizeable amount of evidence outside the trial

- court record has accumulated in this case from the many postconviction filings made between 1998 and 2019 by appellant, Martin Hatton. When postconviction petitioner s seeking new trials provide evidence outside the trial

- court record that potentially undermines the theory of guilt that was used to convict them, courts should hold hearings on the petitions as a regular practice. But Ohio courts are not doing this. I also write to emphasize the pitfalls of having only one trial judge assess the integrity of a conviction throughout the entire life of a criminal case. And there are pitfalls to conducting postconviction review as a continuation of the adversarial process rather
than as a neutral truth

- seeking process. Justice would be better served by expanding the rules that apply to petitions for postconviction relief and motions for a new trial
that involve claims of actual innocence and relevant evidence that was not proffered at the time of trial. Justice would also be better served by supplementing the postconviction process with an independent commission that has the power to investigate claims of actual innocence and assess whether a viable claim of
innocence has been established. This case highlights the need for such reforms. {¶ 44} As is clear from the majority opinion, the identity of the second perpetrator was the central issue at Hatton’s 1997 trial. The rape victim was unable to identify the person who, along wi th Ricky Dunn, broke into her home and raped her. As the state’s DNA expert testified, the DNA evidence was inconclusive. The state’s expert also knew that the DNA samples contained male DNA that could not have come from Hatton or Dunn, but the state fai led to disclose that fact to the defense before or during the expert’s testimony. The state did not provide HattonS UPREME C OURT OF O HIO

18 with the expert’s revelatory DNA

- analysis notes until after the expert had testified. However, Dunn testified that Hatton was the second pe rpetrator, and other witnesses testified that Dunn had identified Hatton as the second perpetrator. {¶ 45} In support of his 1998 postconviction petition, Hatton submitted the affidavit of a DNA expert averring that the state had used scientifically unacceptable procedures in performing its DNA testing and that her review of the state’s results indicated that either Hatton was not a contributor to the DNA samples or that a third male had also contributed to the DNA samples. Hatton also provided
an affidavit from Dunn’s cellmate averring that Dunn had told him that he had falsely identified Hatton as the second perpetrator. The trial court denied the petition without a hearing, concluding that the DNA expert’s affidavit submitted by
Hatton did not contain new evid ence outside the trial

- court record (other than the expert’s opinion of the evidence that had been presented at trial) and that the cellmate’s affidavit was hearsay and did not “create a strong probability the result in [a new] trial would be different.” {¶ 46} I n 2005 and 2008, with the help of the Ohio Innocence Project, Hatton requested postconviction DNA testing. The trial court concluded in both instances that DNA testing was unwarranted because a “reasonable jury” could still find Hatton guilty “based solel y upon circumstantial evidence and testimony of the other witnesses.” The court of appeals affirmed both judgments. State v. Hatton , 4th Dist. No. 05CA38, 2006

- Ohio

- 5121; State v. Hatton , 4th Dist. No. 09CA4,
2010

- Ohio

- 1245. In affirming the second judg ment, the Fourth District Court of Appeals added that Hatton could have raped the victim without leaving DNA, and that the convictions were based on other evidence, including Dunn’s testimony.
2010

- Ohio

- 1245 at ¶ 23

- 25. 4

4 . I consider the appellate court’s elaboration in this instance to be inappropriate. It is not the role of an appellate court to come up with theories supporting a criminal defend ant’s guilt that are not reflected in the trial court’s decision.January Term, 2022

19 {¶ 47} In support of a 2011 motion for l eave to file a motion for a new trial, Hatton submitted correspondence that Dunn had sent to the Innocence Project in 2009, recanting his trial testimony and identifying the second perpetrator as “Jeff Massey.” Hatton also submitted a more recent affidavi t from Dunn in which he averred that he had falsely identified Hatton rather than Massey as the second perpetrator. Although Hatton included an affidavit from an attorney for the Innocence Project explaining that the organization had not provided Dunn’s

c orrespondence to Hatton until December 2010, the trial court concluded that Hatton had failed to justify his delay in filing his motion, and it denied leave. After being instructed by the Fourth District to reach the merits of Hatton’s motion, State
v. Ha tton , 4th Dist. Pickaway No. 11CA23, 2013

- Ohio

- 475, the trial court denied the motion without a hearing, finding that Dunn’s recantation was not credible and that other unspecified evidence supported Hatton’s conviction. {¶ 48} Hatton’s 2019 motion for leave to file a motion for a new trial and his 2019 petition for postconviction relief included a 1998 memo from the state’s DNA expert to the county prosecutor that had not previously been disclosed to Hatton. In the memo, the ex pert admits that the DNA samples from Hatton’s trial included DNA from a male other than Hatton or Dunn. Hatton’s motion and petition also included police reports from January 1997 that were provided to Hatton in response to his April 2019 public

- records request. The reports indicate that the investigating detectives found Dunn to be completely lacking in credibility and that although Dunn had identified Hatton as the second perpetrator, the detectives, after consulting with the county prosecutor, determi ned that the most they could do with that information was to have Hatton appear in a live lineup. The reports make clear that the detectives and the county prosecutor did not believe that there was adequate evidence at that point to file charges against H atton. However, one of the reports states that a municipal

- court judge had called the police department and demanded that charges be filed against Hatton. One of theS UPREME C OURT OF O HIO

20 detectives filed criminal complaints against Hatton in the Circleville Municipal
Court t he same day. {¶ 49} The trial court denied Hatton’s 2019 motion and petition without a hearing. The trial court concluded that Hatton’s arguments were barred by res judicata, that there was no new evidence in the case, and that the DNA evidence
was not essential to the conviction, because the jury had convicted him “on a plethora of additional evidence.” {¶ 50} When presented with each individual claim or bit of evidence to support Hatton’s requests for postconviction review, the trial judge did not deem it necessary to test the veracity of each in light of all the other evidence. But looking at all of Hatton’s postconviction efforts together, we now have (1) a statement from one of Dunn’s cellmates indicating that Dunn had told him that he had perjured himself during H atton’s trial, (2) an affidavit from a DNA expert indicating that the state’s DNA testing procedures were scientifically unacceptable, (3) a recantation by Dunn

— the only person who identified Hatton as the second perpetrator and the state’s star witness, ( 4) police reports showing that charges were filed against Hatton only because a judge had insisted that charges be filed and that the detectives and prosecutor who had reviewed the evidence had not believed it was sufficient to charge him, (5) repeated req uests by Hatton for DNA testing, (6) unwavering claims of innocence by Hatton, and now (7) a written statement from the state’s DNA expert stating that the DNA samples include male DNA that could not have
come from Hatton or Dunn. Hatton has not establish ed a right to relief on his claims, but he has presented evidence that if true would merit a new trial. The trial court’s refusal to hold an evidentiary hearing on Hatton’s claims at this point is
unreasonable. {¶ 51} We try to get as close as we can to the trut h through the many rules, the many roles, and the many participants involved in jury trials. But after a trial concludes with a verdict, any subsequent arguments regarding the truth

- findingJanuary Term, 2022

21 process are made to the trial judge alone. Judges are not exempt from the normal human tendency to interpret new evidence in a way that confirms one’s already existing beliefs

—

known as confirmation bias

— and a trial judge who presided over a defendant’s trial “ cannot help but carry any bias from the original case into t he consideration of the post

- conviction claim,” Frank Tankard, Tough Ain’t Enough: Why District Courts Ignore Tough

- on

- Paper Standards for a Federal Prisoner’s Right to a Hearing and How Specialty Courts Would Fix the Problem , 79 UMKC L.Rev. 775, 777 (2011 ). Confirmation bias is not the same as judicial bias, but it poisons judicial decision

- making all the same. For this reason, among others, I believe that statewide reforms are in order for postconviction claims of actual
innocence. {¶ 52} In a July 2022 report, the Ohio Task Force on Conviction Integrity and Postconviction Review recommended such reforms to Ohio’s postconviction

review process. Report and Recommendations , available at https://www.supremecourt.ohio.gov/docs/Boards/CIPR/Repo rt.pdf (accessed Oct. 19, 2022) [https://perma.cc/97RM

- THBP] . Among other suggested changes, the task force recommends the creation of an Independent Innocence Inquiry Commission and amendments to the statutes governing postconviction petitions,
R.C. 2953 .21 and 2953.23. State Representative David Leland recently proposed new legislation to the General Assembly that incorporates these reforms. 2022 H.B. No. 738 (as introduced), chrome

- extension://ieepebpjnkhaiioojkepfniodjmjjihl /data/pdf.js/web/viewer.h tml?file=https%3A%2F%2Fsearch

- prod.lis.state.oh.us %2Fsolarapi%2Fv1%2Fgeneral_assembly_134%2Fbills%2Fhb738%2FIN%2F00 %2Fhb738_00_IN%3Fformat%3Dpdf (accessed October 31, 2022); see also Rep. Leland to introduce bill addressing wrongful convictions (Oct. 11, 2022), https://ohiohouse.gov/members/david

- leland/news/rep

- leland

- to

- introduce

- bill

addressing

- wrongful

- convictions

- 112149 (accessed Oct. 19, 2022) [https://perma.cc/9W7N

- JAQB]. The task force also drafted a proposed criminalS UPREME C OURT OF O HIO

22 rule, Crim.R. 33.1, which I h ope will be advanced for review and consideration by this court’s Commission on the Rules of Practice and Procedure. Report and
Recommendations at 1. It is my sincere hope that this court and the General Assembly give serious consideration to these propo sals for reform. {¶ 53} Under these reforms, a petitioner claiming innocence would not need to struggle through multiple layers of review to finally get four or more justices at this court to hold that a nonfrivolous request for postconviction review should proceed to an evidentiary hearing. Instead, a hearing would be required for all nonfrivolous claims of innocence that include evidence that was not proffered during the original proceedings. And if the Independent Innocence Inquiry
Commission comes to fr

uition, a petitioner’s claims would not remain solely at the mercy of the adversarial process and a judge who previously presided over the matter. Instead, petitioners would be able to present their claims to an independent
truth

- seeking body that is not susceptible to confirmation bias and that bears allegiance to nothing other than the truth. {¶ 54} Amending the statutes governing postconviction petitions and adopting Crim.R. 33.1 would ensure for all convicted people claiming innocence the same opportunities f or evidentiary hearings and substantive review that the majority is ensuring through this decision for Hatton. I fully join the majority opinion.
B RUNNER , J., concurs in the foregoing opinion.

_________________ Judy C. Wolford, Pickaway County Prosecut i ng Attorney , and Jayme
H artley Fountain, Assistant Prosecuting Attorney, for appellee. The Behal Law Group, L.L.C. , and John M. Gonzales, for appellant.

_________________