[Cite as State v. Mott, 2022-Ohio-2894.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT 

CLARK COUNTY

STATE OF OHIO 

Plaintiff-Appellee

v.

JACOB MOTT

Defendant-Appellant 

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Appellate Case No. 2021-CA-63

Trial Court Case No. 2018-CR-630

(Criminal Appeal from

Common Pleas Court)

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O P I N I O N

Rendered on the 19th day of August, 2022. 

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IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark

County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502

Attorney for Plaintiff-Appellee

 

CATHERINE H. BREAULT, Atty. Reg. No. 0098433 and JON PAUL RION, Atty. Reg. No. 

0067020, 130 West Second Street, Suite 2150, Dayton, Ohio 45402

Attorneys for Defendant-Appellant

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TUCKER, P.J.
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{¶ 1} Jacob Mott appeals from the trial court’s denial of his R.C. 2953.21 petition 

for post-conviction relief. 

{¶ 2} Mott contends the trial court erred in finding an ineffective-assistance-ofcounsel claim in his petition to be barred by res judicata. He also asserts that the trial 

court’s one-sentence entry denying his petition lacked independent analysis and failed to 

address two affidavits accompanying the petition. Finally, he argues that the trial court 

failed to give due deference to the supporting affidavits and that it should have held an 

evidentiary hearing. 

{¶ 3} We agree that the doctrine of res judicata did not bar Mott’s ineffectiveassistance-of-counsel claim. With regard to the other issues, the trial court’s onesentence entry incorporated by reference the State’s memorandum opposing Mott’s 

petition. But that memorandum lacked adequate analysis of Mott’s affidavits and the 

ineffective-assistance issue to support denial of the petition without a hearing and to 

enable appellate review. Accordingly, the trial court’s judgment will be reversed, and the 

case will be remanded for further proceedings.

I. Background 

{¶ 4} In 2019, a jury found Mott guilty of felonious assault with a firearm 

specification. The trial court imposed an aggregate nine-year prison term. This court 

affirmed on direct appeal. The evidence underlying the jury’s verdict was summarized in 

our 2020 opinion as follows:

The incident which formed the basis for Mott’s conviction occurred in 
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the early morning hours of September 16, 2018, when the victim, Cody 

Riley, was out with friends visiting local bars in Springfield, Ohio. The group 

of men, including Riley, eventually went to a bar named Che’s Rustic 

Lounge on Bechtel Avenue in Springfield. At Che’s, Riley came into contact 

with Mott. Although the two men had not seen each other in years, Riley 

and Mott were engaged in an ongoing dispute dating back to their time in 

high school. The dispute involved money, stolen drugs, and a pair of 

expensive sneakers.

Riley testified that, prior to last call at the bar, Mott approached him 

and asked him, “How’s it going, buddy?” Tr. 102. Riley testified that he 

informed Mott that they were not friends and to leave him alone. Mott left at 

that point, but approximately 15 minutes later, he returned and asked Riley 

to buy him a beer. Riley refused, and the two men then engaged in a verbal 

altercation with Mott demanding that they fight. Although disputed by Mott, 

Riley testified that they were subsequently thrown out of the bar.

After being ejected from the bar, Mott invited Riley to meet him at his 

house so they could fight. Mott then sent Riley a text message containing 

the address of his residence in Springfield. Traveling in two vehicles, Riley 

and his friends drove to the address provided by Mott and parked down the 

street a short distance from Mott’s residence. Mott testified that the two 

vehicles containing Riley and his friends were parked at the end of his 

driveway. Shortly after Riley arrived, Mott arrived in a vehicle driven by his 
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ex-girlfriend, Megan Hawk, who parked the car in Mott’s driveway. Mott 

alleges that another individual, Dillon Peterson, was present in the vehicle 

with him and Hawk. As soon as Mott exited the vehicle, Hawk backed the 

vehicle out of the driveway and drove away from the scene. At trial, Mott 

testified that Hawk did not drive away as he earlier told police, but that she 

and Peterson remained in the parked vehicle in his driveway during the 

subsequent events.

In his interview with police, Mott stated that after he exited the 

vehicle, he went inside his house, retrieved a .38 caliber revolver, and 

walked back outside to confront Riley. At trial, however, Mott testified that 

he never went back into his house to retrieve the revolver. Rather, he 

testified that before exiting the vehicle driven by Hawk, he retrieved the 

revolver from the glove box inside the vehicle and then got out and walked 

towards Riley, who was standing at the end of the driveway unarmed. Riley 

testified that Mott had pulled the hammer back on the revolver as he 

approached. Mott then pointed the revolver at Riley’s head stating, “You 

don't think I'll do it.” Tr. 109. At that point, Mott began tapping the barrel of 

the revolver against Riley’s forehead, backing him up toward the street. 

Fearing for his life, Riley attempted to take the gun away from Mott, but was 

unable to do so. Mott then backed up a step and shot Riley in the abdomen. 

The round fired by Mott was later found to have pierced Riley’s abdomen, 

passed through his gall bladder and large intestine, and lodged itself in 
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Riley’s right buttock. At trial, Mott testified that he did not intentionally shoot 

Riley in the abdomen. Rather, Mott claimed that as he and Riley were 

struggling for control of the revolver, the two men fell to the ground, and the 

gun went off accidentally.

One of Riley’s friends, Derrick Delawder, exited his vehicle, picked 

Riley up where he was lying in the grass next to Mott’s driveway, and 

transported him to Springfield Regional Medical Center. Delawder testified 

that he observed Riley try unsuccessfully to take the gun from Mott. 

Delawder testified that he then observed Mott step back, aim the revolver 

at Riley’s torso, and shoot him in the abdomen, contrary to Mott’s testimony 

that the gun accidentally discharged during a struggle.

Riley was eventually flown by Care Flight helicopter to Miami Valley 

Hospital where he received emergency surgery. Riley survived the surgery, 

but doctors were forced to remove his gall bladder and a section of his large 

intestine. At the time of the trial, the bullet still remained lodged in Riley’s 

right buttock. After shooting Riley, Mott walked back to his house and went 

inside; he was located there when the police arrived. Mott was arrested and 

taken into custody. The revolver used in the shooting was later recovered 

by the police in a ravine in the woods near Mott’s residence.

State v. Mott, 2d Dist. Clark No. 2019-CA-41, 2020-Ohio-598, ¶ 2-7.

{¶ 5} In affirming Mott’s conviction, we overruled three assignments of error. One 

of those alleged ineffective assistance of Mott’s trial counsel for failing to subpoena Dillon 
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Peterson and Megan Hawk. We found this assignment of error speculative because we 

had no way of knowing whether defense counsel had interviewed these potential 

witnesses or what they would have said if they had testified. Id. at ¶ 15. We noted that 

Mott’s argument required evidence outside the record, making a petition for postconviction relief the proper avenue for raising the issue. Id. 

{¶ 6} Mott subsequently filed his post-conviction-relief petition. Accompanying the 

petition were affidavits from Peterson and Hawk. With regard to the shooting that occurred 

outside Mott’s residence, Peterson averred as follows:

15. I was the first to exit Mr. Mott’s vehicle, from the back seat.

16. Mr. Mott followed, as the six occupants of the vehicle approached us.

17. The only person I could identify from the group of six individuals was 

Cody Riley. 

18. I could identify Mr. Riley because I have seen him, hung out with him 

before, and recognized him from earlier in the evening. 

19. Mr. Mott walked around the front of the vehicle, passes me, and has a 

firearm in his hand, at his side.

20. I was standing approximately one to two feet behind Mr. Mott on his left 

side, behind him.

21. Mr. Mott stands in the driveway and I personally heard Mr. Mott tell the 

group of individuals to leave. 

22. Mr. Mott displayed the firearm to the group of individuals when they did 

not leave. 
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23. All the individuals, with the exception of Cody Riley, got back in the two 

vehicles. 

24. At this time, Mr. Mott turned around to walk back towards the house[.]

25. I personally witnessed Cody Riley then run towards Mr. Mott and hit or 

attempt to hit him in the back of the head. 

26. As I witnessed this, I verbally warned Mr. Mott that Mr. Riley was 

attacking. I yelled "watch out.” 

27. Mr. Mott turned around and then Mr. Mott and Mr. Riley started to 

physically struggle over control of the gun. 

28. From my observations, being approximately three to four feet away, 

under motion activated flood lights, I observed the firearm to be at waist 

level. 

29. This struggle lasted about thirty seconds. 

30. During the struggle, Mr. Riley was edging backwards, across the street, 

while struggling to grab the firearm. 

31. Mr. Mott and Mr. Riley then fall onto the hood of the rear vehicle parked 

across the street.

32. Both of them then roll off the hood, onto the ground, and the firearm 

discharged when both persons hit the ground. 

33. One single shot went off. 

34. The shot was very muffled and sounded like a bebe [sic] gun. 

35. When the firearm went off, Mr. Riley was on top of Mr. Mott.
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36. Mr. Riley then left with one of the individuals in the car. 

37. Mr. Mott then walks back towards the house and told Megan Hawk to 

leave with his car.

38. I never witnessed Mr. Mott aim the firearm at any individual that evening. 

39. Griff Nowicki, Mr. Mott’s attorney, never spoke to me or interviewed me.

40. The police interviewed me on the night of the shooting.

41. Fearful of being around a firearm, I lied and said I did not witness 

anything because I was a convicted felon.

42. I tried to contact the public defender’s office several times. 

43. I left a message with a secretary to inform them of my knowledge and 

never received a call back. 

44. I even emailed the public defender’s office regarding Mr. Mott’s case to 

make myself available.

45. I was never subpoenaed by Mr. Mott’s attorney.

46. I was never interviewed by Mr. Mott’s attorney. 

47. I was available at the time of trial, and I would have testified on Mr. 

Mott’s behalf.

May 28, 2020 Petition for Post-Conviction Relief at Exh. A.

{¶ 7} In her affidavit, Hawk provided the following statement regarding what 

occurred at Mott’s house:

7. We arrived at Jacob’s house at 2630 am, two (2) cars pulled up in front 

of Jacob’s house, several guys got out, one of those guys was Cody Riley. 

Cody took off his shirt and started yelling. 
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8. Jacob took a gun out of the glove compartment of his car and told me to 

get inside of the house. Dillon Peterson and Jacob got out of the car and 

started walking to the group of guys. I shouted that I was going to call the 

police. I went inside to Jacob’s room and tried to find my phone[.] [T]he 

window was open and I heard Jacob yell that everyone needed to leave, 

[and] after a minute or two, I heard a loud bang.

9. I immediately looked out of the window and saw Dillon Peterson by the 

front of the car and Jacob getting up off of the ground. Both cars started to 

leave the house. Jacob and Dillon both started walking towards the house 

as I was running outside to see what had happened. All three of us went 

inside of the house at that time. 

10. Jacob was upset and told me that he thought that Cody Riley may have 

gotten shot. Dillon Peterson started running in and out of the house and 

slamming doors. I told Jacob that I was worried those guys would come 

back to the house. Jacob told me that I could take his car home since I didn’t 

have mine with me and so I wouldn’t get hurt. I started to grab my purse 

when I noticed that Jacob’s mother had gotten out of bed to see what was 

going on.

11. Jacob was trying to tell his mom, Billie Joe Mott[,] what had happened 

when I was leaving at 2655 am. I walked out of the house and had to step 

over the gun that was at the bottom of the stairs. I took Jacob’s car and 

left[.] I called Jacob at 2658 am and overheard his mom still trying to console 
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him because he was so upset. At the time of the phone call, I did not hear 

Dillon Peterson. Jacob said that he had another call coming in and put me 

on hold. I waited for several minutes and tried calling back but the phone 

had been turned off at that time. 

Id. at Exh. B.

{¶ 8} In his post-conviction-relief petition, Mott alleged ineffective assistance of 

counsel based on his trial attorney’s failure to interview Peterson and Hawk, subpoena 

them to testify, and call them as defense witnesses. Mott claimed that defense counsel 

had listed Peterson and Hawk on his witness list but never spoke with either of them. He 

argued that Peterson and Hawk were the only two people who could corroborate his 

version of events. Mott’s petition included a request for an evidentiary hearing. 

{¶ 9} On September 20, 2021, Mott sought a status conference on his petition, 

which had been pending for approximately 16 months. On November 5, 2021, the State 

filed a memorandum opposing the petition. The State argued that Mott’s post-conviction 

claim was barred by res judicata and that it failed on the merits. Seven days later, the trial 

court filed a one-sentence entry denying Mott’s petition “[f]or the reasons set forth in the 

State’s response[.]” It then denied the request for a status conference.

II. Analysis

{¶ 10} 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 criminal conviction.” (Citations omitted.) State v. Monroe, 2015-Ohio-844, 29 
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N.E.3d 391, ¶ 37 (10th Dist.). A post-conviction proceeding is not an appeal of a criminal 

conviction. It is a collateral civil attack on a criminal judgment. Id. The statute governing 

post-conviction relief permits “[a]ny person who has been convicted of a criminal offense 

* * * who claims that there was such a denial or infringement of the person’s rights as to 

render the judgment void or voidable under the Ohio Constitution or the Constitution of 

the United States * * * [to] file a petition in the court that imposed sentence, stating the 

grounds for relief relied upon, and asking the court to vacate or set aside the judgment or 

sentence or to grant other appropriate relief.” R.C. 2953.21(A)(1)(a)(i). 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).

{¶ 11} A petitioner who challenges his conviction by seeking post-conviction relief 

is not automatically entitled to a hearing. State v. Calhoun, 86 Ohio St.3d 279, 282, 714 

N.E.2d 905 (1999). Instead, “a trial court has a gatekeeping role as to whether a 

defendant will even receive a hearing.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio6679, 860 N.E.2d 77, ¶ 51. Before granting an evidentiary hearing on a petition, a trial 

court shall determine whether there are substantive grounds for relief. State v. Perry, 

2016-Ohio-4582, 66 N.E.3d 1109, ¶ 24 (2d Dist.). A petitioner has the initial burden to 

provide evidence containing sufficient operative facts to demonstrate a cognizable claim 

of constitutional error. State v. Kapper, 5 Ohio St.3d 36, 37-38, 448 N.E.2d 823 (1983). 

In determining whether there are grounds for such relief, a trial court is required to 

consider the petition and any supporting affidavits. R.C. 2953.21(D). We review a trial 

court’s decision for an abuse of discretion. Gondor at ¶ 51-52, citing Calhoun at 286. 
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A. Res Judicata

{¶ 12} In his first assignment of error, Mott contends the trial court erred in finding 

his ineffective-assistance-of-counsel claim barred by res judicata. He asserts that res 

judicata does not apply because his claim relies on evidence outside the trial record, 

namely affidavits from Peterson and Hawk. 

{¶ 13} For its part, the State argues that res judicata does apply. The State notes 

that Mott argued ineffective assistance of counsel on direct appeal based on his trial 

attorney’s failure to call Peterson and Hawk as witnesses. Because Mott raised that issue 

on direct appeal, the State maintains that res judicata precludes him from asserting it 

again in a petition for post-conviction relief. 

{¶ 14} Upon review, we conclude that the trial court erred in finding Mott’s 

ineffective-assistance claim barred by res judicata. On direct appeal, Mott did attempt to 

raise his attorney’s failure to call Peterson and Hawk as witnesses. We rejected his 

argument because it required evidence outside the record. We specifically stated that a 

post-conviction-relief petition was the proper avenue for Mott to seek relief. 

{¶ 15} In State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985), the Ohio 

Supreme Court held that a defendant could pursue post-conviction relief based on 

ineffective assistance of counsel despite the fact that he had raised the issue on direct 

appeal. In reaching its conclusion, the Ohio Supreme Court reasoned: “[I]t is possible that 

the issue of competency herein could not fairly have been determined without resort to 

evidence dehors the record. * * * Under these circumstances, res judicata may not be a 

bar to postconviction relief.” Id. at 1131, fn. 1. 
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{¶ 16} We reach the same conclusion here. Although Mott raised ineffective 

assistance of counsel on direct appeal, we noted our inability to determine the issue 

absent evidence outside the record. Mott responded by filing a petition providing such 

evidence in the form of affidavits from Peterson and Hawk. Under these circumstances, 

res judicata did not apply. Mott’s first assignment of error is sustained.

B. Adequacy of Trial Court’s Entry

{¶ 17} In his second assignment of error, Mott challenges the adequacy of the trial 

court’s one-sentence entry denying his petition. He notes that the trial court’s entry 

contained no analysis and failed to address the claim in his petition or the supporting 

affidavits. 

{¶ 18} We agree that a one-sentence entry, standing alone, would be inadequate 

to support denying a petition for post-conviction relief. Under R.C. 2953.21(H), if a trial 

court “does not find grounds for granting relief, it shall make and file findings of fact and 

conclusions of law and shall enter judgment denying relief on the petition.” Here the trial 

court’s entry denying Mott’s petition lacked any findings. Notably, however, it denied the 

petition “[f]or the reasons set forth in the State’s response[.]”

{¶ 19} In essence, the trial court adopted by reference the State’s opposing 

memorandum. Although such a practice is less helpful than an actual decision by the trial 

court containing its own findings of fact and conclusions of law, Mott has not identified 

anything prohibiting what the trial court did. The issue becomes the adequacy of the 

State’s memorandum to support dismissal of Mott’s petition. We will address this issue 

under the third assignment of error. Mott’s second assignment of error is overruled. 
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C. Deference to Affidavits and Credibility Assessment 

{¶ 20} In his third assignment of error, Mott contends the trial court erred in failing 

to give due deference to the affidavits of two eyewitnesses, Peterson and Hawk, who 

largely corroborated his version of events. While acknowledging that a trial court has 

some discretion to assess the credibility of affidavits supporting a post-conviction-relief 

petition, Mott claims the trial court failed to engage in such an analysis. 

{¶ 21} In response, the State argues that the trial court gave proper weight to the 

affidavits and properly assessed their credibility without holding an evidentiary hearing. 

The State claims the affidavits from Peterson and Hawk failed to make clear where they 

were located during the shooting. The State also asserts that Peterson’s affidavit is 

inconsistent with Mott’s trial testimony and that Hawk’s affidavit reveals she did not even 

witness the shooting. 

{¶ 22} Having examined the State’s memorandum opposing Mott’s petition, we 

find it insufficient to support denying Mott’s petition without an evidentiary hearing. As an 

initial matter, we cannot ignore the context in which the trial court adopted the State’s 

memorandum. More than one year after filing his petition, Mott sought a status conference 

on it. In response to that request, the State filed an extremely tardy memorandum in 

opposition to the petition. Just seven days later, the trial court denied Mott’s petition in a 

one-sentence ruling “[f]or the reasons set forth in the State’s response.” As noted above, 

the State’s first and primary rationale for denying the petition was res judicata, which 

plainly had no applicability.

{¶ 23} As for the merits of Mott’s petition and supporting affidavits, the State’s 
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memorandum contained little analysis. Although a trial court has some discretion to 

assess the credibility of post-conviction affidavits without a hearing, the State’s analysis 

did not even mention the word “credibility.” Although the State did make cursory 

references to the “reliability” of Peterson and Hawk, its memorandum in opposition to the 

petition failed to address or even mention any of the multiple factors identified by the Ohio 

Supreme Court in Calhoun as being relevant to the credibility of post-conviction affidavits. 

{¶ 24} In its memorandum opposing Mott’s petition, the State suggested that the 

two affidavits were unreliable or at least unhelpful because they failed to make clear 

where Peterson and Hawk were located during the shooting. But Peterson’s affidavit 

unambiguously stated that he “was standing one to two feet behind Defendant on his left 

side, behind him.” For her part, Hawk averred that she was inside the house when she 

heard the gunshot. 

{¶ 25} At trial, Mott testified that he had instructed Peterson and Hawk to wait in 

his car before the shooting occurred. Trial Tr. at 232. That instruction, however, is not 

necessarily inconsistent with Peterson’s averment that he was behind Mott at the time of 

the shooting or Hawk’s averment that she was in the house. It remains possible that 

Peterson and Hawk disregarded Mott’s instruction, that Peterson in fact was behind Mott, 

and that Mott did not see Peterson because he was preoccupied with Riley. Later in his 

trial testimony Mott acknowledged that Peterson and Hawk in fact did not wait in his car. 

He recalled that Hawk “got in [his] car and drove off” after the shooting and that Peterson 

was “standing around [him].” Id. at 234.

{¶ 26} The State also suggested in its memorandum opposing the petition that 
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Mott’s trial testimony conflicted with Peterson’s affidavit, making the affidavit unreliable. 

Specifically, Mott testified at trial that Riley tackled him after Mott heard a car door shut 

and “glance[d] back.” Id. at 233. Peterson averred that Riley ran toward Mott and hit or 

attempted to hit him in the head as Peterson yelled “watch out.” It may be, however, that 

Riley’s act of tackling Mott included an attempt to hit him in the head. It also may be that 

Peterson did yell “watch out” and that Mott either did not hear him or simply did not 

mention the verbal warning in his trial testimony. Notably, Mott did not deny at trial that 

Peterson yelled for him to watch out.

{¶ 27} Finally, the State’s memorandum opposing Mott’s petition noted Peterson’s 

felony record and suggested that defense counsel declined to call Peterson as a witness 

based on that record. Nothing before us, however, explains why defense counsel declined 

to call Peterson, who according to his affidavit would have provided testimony largely 

supporting Mott’s version of key events. 

{¶ 28} We do not suggest that the affidavits from Peterson and Hawk necessarily 

were credible or that they necessarily entitled Mott to a new trial or even to a hearing on 

his petition. One or more of the Calhoun factors may apply and cause the trial court to 

discount the credibility of the supporting affidavits. In our view, however, the State’s 

memorandum, which the trial court adopted by reference, contained insufficient findings 

and analysis for the trial court to discount the affidavits and deny Mott’s petition or for us 

to conduct meaningful appellate review. In the absence of such analysis, the trial court 

abused its discretion by effectively entering summary judgment in favor of the State 

without holding a hearing on the petition.
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{¶ 29} Where a trial court denies post-conviction relief without conducting a 

sufficient credibility analysis and explaining its decision in a way that permits appellate 

review, the proper remedy is to reverse the judgment and to remand the case for further 

evaluation and analysis with an evidentiary hearing, if necessary. State v. Thompson, 2d 

Dist. Montgomery No. 27924, 2018-Ohio-4689, ¶ 14-17, 27; State v. Henry, 2017-Ohio7427, 96 N.E.3d 1139, ¶ 21-24 (2d Dist.). We find that to be the appropriate remedy here. 

Accordingly, Mott’s third assignment of error is sustained.

III. Conclusion

{¶ 30} For the reasons set forth above, we sustain Mott’s first assignment of error 

challenging the trial court’s reliance on res judicata. We also sustain Mott’s third 

assignment of error insofar as the trial court abused its discretion in failing to make 

sufficient findings regarding the affidavits provided by Peterson and Hawk. 

{¶ 31} The trial court’s judgment denying post-conviction relief is reversed, and the

case is remanded. If the trial court determines that a hearing is not warranted, it should 

explain the basis of that determination in its judgment entry. If the trial court deems an 

affidavit to lack credibility, then its judgment entry should include an evaluation of the 

affidavit consistent with Calhoun.

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

WELBAUM, J. and EPLEY, J., concur. 
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Copies sent to: 

Ian A. Richardson

Catherine H. Breault

Jon Paul Rion

Hon. Douglas M. Rastatter