[Cite as State v. McFarland, 2022-Ohio-4638.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 111390

v. :

SHELIA A. MCFARLAND, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: December 22, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-16-604052-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Daniel T. Van, Assistant Prosecuting 

Attorney, for appellee. 

Valore & Gordillo LLP and Dean M. Valore, for appellant. 

EILEEN T. GALLAGHER, J.:

Defendant-appellant, Sheila McFarland (“McFarland”), appeals the 

denial of her motion for leave to file a motion for new trial and claims the following 

error:
The trial court committed reversible error and prejudiced appellant 

when it denied appellant’s motion for leave to file motion for new trial. 

We affirm the trial court’s judgment. 

I. Facts and Procedural History

In March 2016, McFarland was charged with multiple offenses, 

including two counts of aggravated murder in connection with the shooting death of 

Robert Williams (“Williams”) in November 2015. A jury found McFarland guilty of 

all ten counts in the indictment, and the court sentenced her to an aggregate prison 

term of life without the possibility of parole. The court also imposed a fine of 

$20,000. See State v. McFarland, 8th Dist. Cuyahoga No. 105570, 2018-Ohio2067. 

At trial, the prosecution presented testimony indicating that Williams 

was living in the Indian Hills Apartments in Euclid, Ohio with his girlfriend, Korri 

Henderson (“Henderson”) at the time of his death. Two months earlier, in 

September 2015, Euclid narcotics detectives conducted a series of controlled drug 

buys from Williams in the parking lots surrounding the Indian Hills Apartments. As 

a result of the buys, the narcotics detectives obtained and executed a search warrant 

for Williams’s apartment where they discovered crack cocaine. Both Williams and 

Henderson were arrested and subsequently agreed to become confidential 

informants to assist Euclid detectives in apprehending their supplier, Eddie 

Brownlee (“Brownlee”), and his girlfriend, McFarland. 
Williams conducted three controlled drug buys from Brownlee and 

McFarland. Brownlee and McFarland were arrested during the third buy on 

October 22, 2015, and they were both charged with drug offenses. McFarland was 

released from jail on October 23, 2015, but Brownlee remained in jail. 

While incarcerated on the pending drug charges, Brownlee made 

several recorded phone calls to McFarland, who was using Brownlee’s cell phone. 

During one of the calls, Brownlee told McFarland, who was then in the presence of 

a mutual friend, codefendant Ryan Motley (“Motley”), that he suspected Williams 

was an informant, who had “snitched” on him and set up the controlled buys. 

Following the call, McFarland and Motley went to a hotel room, where Brownlee 

and McFarland had been staying, and removed drugs to avoid further charges. 

Motley also recovered a firearm from under a mattress and removed it from the 

room. When Motley informed Brownlee that he had retrieved the gun, Brownlee 

told Motley to “Get Rob. Get those mother***ckers.” McFarland, 8th Dist. 

Cuyahoga No. 105570, 2018-Ohio-2067, ¶ 6. Brownlee also told Motley, “I need you 

to handle this.” Id. McFarland replied that she and Motley were “about to do that 

one thing now.” Id. Motley later claimed at trial that “what they were about to do” 

referred to retaining a lawyer for Brownlee. Id. 

Meanwhile, McFarland and Motley sold drugs to raise money to post 

Brownlee’s bond. McFarland posted Brownlee’s bond on November 10, 2015, and 

he was released from the county jail. Thereafter, Brownlee again told Motley he 

believed Williams was a snitch and instructed Motley to physically harm Williams. 
Brownlee also called Williams and threatened that he (Williams) and Henderson 

were going to “see their graves.” Id. at ¶ 8. 

The trial testimony showed that on November 14, 2015, Motley, his 

brother, and a friend, not McFarland, drove to the Indian Hills Apartments and 

waited in the second-floor stairwell. When they heard Williams leave his apartment, 

Motley ran toward Williams and shot him the chest. Motley and the others 

immediately fled the scene, and Motley disposed of the gun. Henderson heard the 

gunshot and called the police. Henderson told police that she and Williams had 

been receiving threats from Brownlee and McFarland. Henderson knew McFarland 

because Williams bought cocaine from Brownlee. 

Motley testified against McFarland at trial. He stated that he was a drug 

dealer in the Indian Hills Apartments area and that Brownlee was one of his 

suppliers. He admitted that he went to Brownlee and McFarland’s hotel room, 

where he retrieved the gun that he later used to shoot Williams. McFarland argued 

in defense at trial that she was not present during the murder and that there was no 

evidence that she participated in a conspiracy to murder Williams. (Trial tr. 730-

738.) The jury nevertheless found her guilty.

McFarland appealed her convictions, arguing, among other things, 

that there was insufficient evidence to sustain her convictions because she was not 

present during the murder and there was no evidence of any overt acts required to 

support a conspiracy charge. See McFarland, 8th Dist. Cuyahoga No. 105570, 2018-

Ohio-2067. This court affirmed McFarland’s convictions but remanded the case to 
the trial court to merge allied offenses of similar import. Id. McFarland appealed 

this court’s decision to the Ohio Supreme Court, which affirmed this court’s decision 

and found sufficient evidence to sustain her convictions. See State v. McFarland, 

162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316. 

On remand but before resentencing, McFarland filed, under seal,1 a 

motion for leave to file a motion for a new trial pursuant to Crim.R. 33(A)(6). She 

argued that after receiving psychiatric treatment in prison, she discovered that she 

had been misdiagnosed while in the county jail, had not been given the appropriate 

medication for her mental illness, and that, as a result, she was not competent to 

stand trial at the time of trial. She also argued that she had a low IQ and a history of 

childhood abuse that prevented her from being able to assist in her own defense. 

The trial court resentenced McFarland in accordance with this court’s 

mandate and sentenced her to 20 years to life in prison plus three years on an 

attendant firearm specification for an aggregate 23 years to life in prison. This time, 

the court did not impose any fines. In the court’s sentencing entry, the court denied 

McFarland’s motion for leave to file a motion for new trial “as moot.” McFarland 

now appeals the denial of her motion for leave to file a motion for new trial.

1 McFarland’s motion for leave to file a motion for new trial was filed under seal 

because it contained confidential medical records, school records, and a presentenceinvestigation report from a prior case. However, the parties have not filed their appellate 

briefs under seal and they reference items submitted as exhibits to the motion for leave. 

Under these circumstances, we find it appropriate to reference portions of the record cited 

in the parties’ briefs to the extent it is necessary to resolve the arguments presented in 

this appeal. 
II. Law and Analysis

A. Standard of Review

McFarland filed her motion for leave to file a motion for new trial 

pursuant to Crim.R. 33(A)(6). Crim.R. 33(A)(6) provides that a new trial may be 

granted “when new evidence material to the defense is discovered, which the 

defendant could not with reasonable diligence have discovered and produced at the 

trial.” Crim.R. 33(A)(6); State v. Apanovitch, 8th Dist. Cuyahoga No. 108924, 

2020-Ohio-4217, ¶ 15.

Crim.R. 33(B) provides that a motion for new trial based on newly 

discovered evidence must be filed within 120 days after a verdict is rendered. A party 

who fails to file a motion for new trial within that time must seek leave from the trial 

court to file a delayed motion for new trial. State v. Hale, 8th Dist. Cuyahoga No. 

107782, 2019-Ohio-1890, ¶ 9. The trial court may grant leave to file a delayed 

motion for new trial if the movant shows, by clear and convincing evidence, that he

or she was unavoidably prevented from filing the motion for a new trial within the 

120 days of the trial verdict, and he or she sought leave to file the motion for new 

trial within a reasonable time after discovering the evidence. Id. at ¶ 9-10. 

“Clear and convincing evidence is that measure or degree of proof * * * 

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, 120 N.E.2d 

118 (1954), paragraph three of the syllabus.
“‘[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.’” Apanovitch at ¶ 15, quoting State v. Walden, 19 Ohio App.3d 141, 483 

N.E.2d 859 (10th Dist.1984).

The defendant bears the burden of demonstrating, by clear and 

convincing evidence, that he or she was unavoidably prevented from filing his or her 

motion within the time prescribed. State v. Hubbard, 8th Dist. Cuyahoga No. 

108853, 2020-Ohio-2726, ¶ 29. To meet this burden, the defendant must present 

“‘more than a mere allegation that he [or she] was unavoidably prevented from 

discovering the evidence he [or she] seeks to introduce to support a new trial.’” Id., 

quoting State v. Cowan, 8th Dist. Cuyahoga No. 108394, 2020-Ohio-666, ¶ 10. 

Crim.R. 33 does not provide a specific time limit in which defendants 

must file a motion for leave to file a delayed motion for new trial, but Ohio courts 

have held that a defendant must file his or her motion for leave within a reasonable 

time after he or she discovers the evidence. Apanovitch at ¶ 16. “The determination 

of whether a delay is reasonable is based on the facts and circumstances of the case 

and whether the defendant presents an adequate explanation for the delay in filing 

his or her motion for leave.” Hubbard at ¶ 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 trial until after it grants the motion for leave.” State v. Hatton, Slip 

Opinion No. 2022-Ohio-3991, ¶ 30, citing State v. Bethel, 167 Ohio St.3d 362, 2022-

Ohio-783, 192 N.E.3d 470, ¶ 41. “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.” Id.

A trial court’s decision on a Crim.R. 33 motion for a new trial will not 

be reversed absent an abuse of discretion. State v. Sutton, 2016-Ohio-7612, 73 

N.E.3d 981, ¶ 13 (8th Dist.). We also review the decision on whether to hold a 

hearing on the motion for new trial for an abuse of discretion. Id. at ¶ 24. An abuse 

of discretion occurs when a court exercises its judgment in an unwarranted way 

regarding a matter over which it has discretionary authority. Johnson v. Abdullah, 

166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. In other words, “[a] 

court abuses its discretion when a legal rule entrusts a decision to a judge’s 

discretion and the judge’s exercise of that discretion is outside of the legally 

permissible range of choices.” State v. Hackett, 164 Ohio St.3d 74, 2020-Ohio6699, 172 N.E.3d 75, ¶ 19. 

This court has held that an abuse of discretion may be found where a 

trial court “applies the wrong legal standard, misapplies the correct legal standard, 

or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio 

App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.). When applying the 

abuse of discretion standard, a reviewing court may not substitute its judgment for 
that of the trial court. Vannucci v. Schneider, 2018-Ohio-1294, 110 N.E.3d 716, ¶ 22 

(8th Dist.).

B. Unavoidably Prevented

McFarland was required to seek leave of the trial court to file a motion 

for new trial because she filed the motion more than 120 days after the jury rendered 

its verdict. In order to obtain leave, McFarland had to demonstrate, by clear and 

convincing evidence, that she was unavoidably prevented from discovering 

information material to her defense that she could not, with reasonable diligence,

have discovered and produced at the time of trial. Crim.R. 33(A)(6). 

In her motion for leave, McFarland argued that she was unavoidably 

prevented from discovering how her mental illness impaired her ability to assist in 

her defense due to a misdiagnosed mental illness. In support of this claim, 

McFarland submitted (1) copies of her medical records from the county jail from the 

time of her arrest to the time of trial; (2) copies of her school records from the 

Cleveland Metropolitan School District from 1972 to 1978; (3) copies of her medical 

records from the Ohio Department of Rehabilitation and Correction, Dayton 

Correctional Institution, from 2017 to 2018; (4) a journal article regarding the 

impact of childhood trauma on the cognitive function of individuals with bipolar 

disorder;(5) a presentence-investigationreport from a 2002 Cuyahoga County case;

(6) records from the Mississippi Department of Child Protective Services pertaining 

to McFarland when she was a child; (7) records from the Center for Families and 

Children and Circle Health Services Medical Records from 2012 to 2014; and (8) a 
journal article regarding the use of antidepressants in the treatment of adults with 

bipolar major depression.

There is no evidence in the record demonstrating that McFarland was 

unavoidably prevented from obtaining her own medical records, presentenceinvestigation report from her own prior case, or her own school records. And, 

although the medical records from 2017 to 2018 indicate that McFarland was 

prescribed different medications in the Dayton Correctional Institution from those 

prescribed to her while she was in the county jail awaiting trial, there is no evidence 

in the records, expert or otherwise, demonstrating that she was misdiagnosed prior 

to trial or that she was not competent to stand trial. Indeed, the journal article 

regarding the use of antidepressants in the treatment of bipolar major depression 

states that “antidepressants * * * are the most commonly prescribed drugs for 

bipolar depression.” (Motion for leave to file motion for new trial, exhibit B., p.1.) 

McFarland was given an antidepressant to treat her illness while she was in the 

county jail. 

The evidence submitted in support of the motion for leave 

demonstrates that McFarland had a history of mental-health issues and treatment, 

long before trial. The 2002 presentence-investigationreport states, in relevant part:

According to the offender[,] she is in good health at the present time 

[and] does not take prescription medications. She is not currently 

under a doctor’s care, but has received mental health treatment. The 

offender indicates that she received an evaluation for depression on 4-

19-02 by Dr. P. White of University Hospitals located at E. 185th and 

Lakeshore Avenue. Additionally, in 1985 she spent three days at the 

Cleveland Psychiatric Institute, has been hospitalized at Meridia 
Hospital in Warrensville Hts. for one day, as well as Charity Hospital 

during an unknown year. * * * According to institutional records, on 

6-5-85 during an intake screening evaluation at the Ohio State 

Reformatory for Women by S. Bin Yun, M.D., Department of 

Psychological Services, the offender was administered the MMPI, as 

well as the revised Beta II tests, indicating that she was functioning at 

the lower limits of below average level of non-verbal intelligence. 

Further, these test results indicate that her “defense system is rather 

weak yielding considerable emotional vulnerability and subsequent 

feelings of anxiety and depression under pressure.” On 6-14-88, a 

second intake screening evaluation was completed and it was stated 

that “she could best be described as a psychopathic personality at this 

time.” Test results “suggest that she is non-conforming and resentful 

of authority figures. Her behaviors tend to be erratic and 

unpredictable, while having marked problems with impulse control. 

She also tends to be angry, irritable, and resentful, and tends to act out 

in anti-social ways.” 

(Motion for leave to file motion for new trial, exhibit D, p. 9.) Clearly, McFarland’s 

mental illness and cognitive deficits are not new, and her records could have easily 

been obtained by trial counsel prior to trial. “A defendant cannot claim that evidence 

was undiscoverable merely because the defendant or his defense counsel made no 

effort to obtain the evidence sooner.” Hubbard, 8th Dist. Cuyahoga No. 108853, 

2020-Ohio-2726, at ¶ 56, citing State v. Jackson, 8th Dist. Cuyahoga No. 108241, 

2019-Ohio-4893, ¶ 20. 

The records from the Dayton Correctional Institution indicate that she 

was diagnosed with schizoaffective disorder, bipolar type, while she was in the 

institution after trial. This new diagnosis does not necessarily mean she was 

previously misdiagnosed. And McFarland did not submit any affidavits, expert or 

otherwise, to substantiate such a claim. Moreover, there is also no evidence 
whatsoever that McFarland was not competent to stand trial even if she had 

previously been misdiagnosed. 

McFarland was offered a plea prior to trial that would have subjected 

her to a five-year sentence. She rejected that offer, proceeded to trial, and was 

convicted of aggravated murder, which now subjects her to a 20 year-to-life prison 

sentence. The purpose of her motion for new trial is to ascertain why she rejected 

the plea offer. She asserts that she must have been incompetent to reject sucha plea 

and risk a life sentence. However, McFarland maintained her innocence at trial and 

presented the defense that there was no evidence that she participated in the 

conspiracy to murder Williams. Such a defense was not unreasonable since she was 

not present at the scene of the murder, and Motley admitted that he murdered 

Williams at Brownlee’s direction. The fact that McFarland rejected the plea does 

not, by itself, establish that McFarland was not competent to stand trial under these 

circumstances. 

A criminal defendant is only entitled to a hearing on a motion for leave 

to file a motion for a new trial if he or she submits documents which, on their face, 

support his or her claim that he or she was unavoidably prevented from timely 

discovering the evidence at issue. State v. Dues, 8th Dist. Cuyahoga No. 105388, 

2017-Ohio-6983, ¶12, citing State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio1181, ¶ 7, 869 N.E.2d 77 (2d Dist.). “Mere conclusory allegations do not prove that 

the defendant was unavoidably prevented from discovering the evidence he seeks to 

introduce as support for a new trial.” State v. Cashin, 10th Dist. Franklin No. 17AP-
338, 2017-Ohio-9289, ¶ 17; see also State v. Miller, 8th Dist. Cuyahoga No. 110571, 

2022-Ohio-378, ¶ 14 (same.). 

McFarland failed to present evidence that, on its face, would support 

her claim that she was unavoidably prevented from discovering that she was 

misdiagnosed prior to trial and that improper treatment based on the misdiagnosis

impaired her ability to engage in her own defense. The fact that she had a mental 

illness and cognitive deficits was known prior to trial. She, therefore, cannot meet 

her burden of establishing, by clear and convincing evidence, that she was 

unavoidably prevented from obtaining information regarding her mental-health

condition prior trial had she and her trial counsel exercised reasonable diligence. 

The sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

SEAN C. GALLAGHER, A.J., and

MARY EILEEN KILBANE, J., CONCUR