[Cite as State v. Davis, 2012-Ohio-32.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsROLAND DAVIS 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Sheila G. Farmer, J. 

Hon. Patricia A. Delaney, J. 

Case No. 09-CA-0019 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, 

Licking County, Ohio, Case No. 04-CR-464 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: January 4, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

KENNETH W. OSWALT JOSEPH E. WILHELM 

LICKING COUNTY PROSECUTOR ASSISTANT STATE PUBLIC DEFENDER 

 250 E. Broad Street- Suite 1400 

BY: KENNETH W. OSWALT Columbus, Ohio 43215 

Licking County Prosecuting Attorney 

20 S. Second Street 

Fourth Floor 

Newark Ohio 43055 
Licking County, Case No. 09-CA-0019 2

Hoffman, P.J. 

(¶1) Defendant-Appellant Roland Davis appeals the January 30, 2009 

Judgment Entry entered by the Licking County Court of Common Pleas denying his 

request for leave to file a motion for new trial. Plaintiff-Appellee is the State of Ohio. 

STATEMENT OF FACTS AND THE CASE

(¶2) This appeal stems from the murder of 86-year-old Elizabeth Sheeler by an 

intruder to her apartment. The intruder murdered Sheeler by stabbing her in the neck 

and chest. The intruder stole money from the apartment and fled the scene. The murder 

went unsolved for almost four years. In 2004, DNA testing identified Appellant as the 

murderer of Sheeler. 

(¶3) Appellant was indicted on one count of aggravated murder while 

committing kidnapping, aggravated robbery, or aggravated burglary. Count One 

contained four death-penalty specifications, to wit: murder for the purpose of escaping 

detection, apprehension, trial, or punishment, in violation of R.C. 2929.04(A)(3); murder 

while committing, attempting to commit, or fleeing after committing kidnapping, in 

violation of R.C. 2929.04(A)(7); murder while committing, attempting to commit, or 

fleeing after committing aggravated robbery, in violation of R.C. 2929.04(A)(7); and 

murder while committing, attempting to commit, or fleeing after committing aggravated 

burglary, in violation of R.C. 2929.04(A)(7). 

(¶4) Appellant was indicted with four additional counts: Count Two charged 

Appellant with murder, Count Three charged kidnapping, Count Four charged 

aggravated robbery, and Count Five charged aggravated burglary. The jury found 

Appellant guilty of all charges, and he was sentenced to death. For a complete 
Licking County, Case No. 09-CA-0019 3

statement of the underlying facts see, State v. Davis, 116 Ohio St.3d 404, 880 N.E.2d 

31, 2008-Ohio-2. 

(¶5) On January 3, 2008, the Ohio Supreme Court upheld Appellant’s 

convictions and his death sentence after independently reviewing his sentence as 

required by R.C. 2929.05(A). Id. Appellant filed a petition for certiorari with the United 

States Supreme Court, which was denied on October 6, 2008. Davis v. Ohio (2008), 

___ U.S. ____, 129 S.Ct. 137. 

(¶6) Appellant filed a petition for post-conviction relief pursuant to R.C. 2953.21 

on June 23, 2006. The State filed an Answer and Motion for Summary Judgment. On 

July 20, 2006, Appellant filed a Motion for Leave to Amend Post-Conviction Petition, an 

Amended Post-Conviction Petition, a Motion for DNA Testing, a Motion for Discovery 

and Evidentiary Hearing, a Motion for Appropriation of Funds for Dr. Robert L. Smith, 

Clinical Psychologist, and a Reply Opposing the State’s Motion for Summary Judgment. 

The State opposed all of those pleadings. On November 8, 2007 the State filed a 

Supplemental Motion for Summary Judgment addressing Appellant’s Fifteenth and 

Sixteenth Grounds for Relief. On November 14, Appellant mailed his Response to the 

State’s Supplemental Motion for Summary Judgment; however, on that day, the trial 

court issued its findings of fact and conclusions of law. Appellant then filed a Motion for 

New Trial under Civ.R. 59(A). The trial court re-considered its decision in light of 

Appellant’s Response to the State’s Supplemental Motion for Summary Judgment and 

issued its final entry on January 14, 2008, granting the State’s motion for summary 

judgment, thereby dismissing Appellant’s post-conviction relief petition. 
Licking County, Case No. 09-CA-0019 4

(¶7) Appellant timely appealed the decision to this Court. While that appeal 

was pending, Appellant filed his motion for leave to file a new trial motion which is the 

subject of the instant appeal. 

(¶8) We affirmed the trial court’s dismissal of Appellant’s amended PCR 

petition on December 23, 2008. State v. Davis, 2008-Ohio-6841. Thereafter the trial 

court entered its judgment filed January 30, 2009, denying Appellant’s motion for leave 

to file a new trial motion. The trial court specifically found Appellant was not 

unavoidably prevented from discovering the new evidence he attached to his motion. 

(¶9) It is from that judgment entry Appellant prosecutes this appeal, assigning 

as error: 

(¶10) “I. THE TRIAL COURT VIOLATED APPELLANT’S DUE PROCESS 

RIGHTS WHEN IT DENIED HIS REQUEST FOR LEAVE TO FILE A NEW TRIAL 

MOTION. U.S. CONST. AMEND. XIV.” 

(¶11) Appellant maintains he was unavoidably prevented from discovery of 

evidence attacking the State’s use of DNA evidence as required by Crim.R. 33(B) 

because his trial counsel was ineffective in failing to properly challenge the same. As 

such, Appellant argues he “...could not be expected to present evidence of their own 

ineffectiveness.”1

 

(¶12) Appellant bases his argument upon the affidavit submitted by his DNA 

expert, Dr. Lawrence Mueller. While we agree Dr. Mueller’s affidavit was “outside the 

record”, as then comprised at the time of his two previous appeals, such fact does 

 

1

 Appellant’s Brief at pg. 7. 
Licking County, Case No. 09-CA-0019 5

nothing to demonstrate Appellant was unavoidably prevented from discovering it within 

the applicable time limits of Crim.R. 33. 

(¶13) We note Appellant raised a claim of ineffective assistance of counsel as 

his Sixteenth Ground for Relief in his previously filed PCR petition. Therein, Appellant 

relied upon the opinion of Attorney Gregory Meyer regarding the deficiencies of the 

State’s DNA evidence. This Court discounted Meyer’s affidavit because, although he 

may have consulted with experts, his opinions as expressed in his affidavit were not 

those of an expert witness. 

(¶14) We agree Dr. Mueller may well qualify as an expert witness and his 

affidavit is “outside the record” as to issues previously raised and addressed by this 

Court in the two previous appeals. However, that does not bear upon, let alone 

demonstrate, Appellant was unavoidably prevented from seeking or obtaining Dr. 

Mueller’s testimony within the time parameters of Crim.R. 33. 

(¶15) As accurately stated by the trial court in its entry, while Appellant’s trial 

counsel’s ineffectiveness may or may not be grounds for a new trial, it does not 

demonstrate Appellant was unavoidably prevented from procuring Dr. Mueller’s 

testimony in the 120 days after the trial. Likewise, as noted by the trial court, the fact 

Appellant could not raise his instant ineffective assistance claim based upon Dr. 

Mueller’s affidavit in his previous motions and/or appeals, does not demonstrate he was 

unavoidably prevented from timely discovering such evidence. As pointed out by the 

trial court, Dr. Mueller’s affidavit shows most, if not all, of the sources and studies he 

cites to support his statistical contentions were available at the time Appellant was 

convicted. 
Licking County, Case No. 09-CA-0019 6

(¶16) We find the trial court correctly determined Appellant’s motion for new trial 

was untimely, and properly denied his request for a finding he was unavoidably 

prevented from discovering the new evidence upon which he relies. 

(¶17) Appellant’s assignment of error is overruled. 

(¶18) The judgment of the trial court is affirmed. 

By: Hoffman, P.J. 

Farmer, J. and 

Delaney, J. concur 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ Sheila G. Farmer __________________

 HON. SHEILA G. FARMER 

 s/ Patricia A. Delaney _________________

 HON. PATRICIA A. DELANEY 
Licking County, Case No. 09-CA-0019 7

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

ROLAND DAVIS : 

 : 

 Defendant-Appellant : Case No. 09-CA-0019 

 For the reasons set forth in our accompanying Opinion, the January 30, 2009 

Judgment Entry entered by the Licking County Court of Common Pleas Court is 

affirmed. Costs assessed to Appellant. 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ Sheila G. Farmer __________________

 HON. SHEILA G. FARMER 

 s/ Patricia A. Delaney _________________

 HON. PATRICIA A. DELANEY