[Cite as State v. Cannon, 2021-Ohio-4198.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

DEREK CANNON, 

 Defendant-Appellant. 

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APPEAL NO. C-210131 

TRIAL NO. B-9507633 

O P I N I O N.

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: December 1, 2021 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Ohio Innocence Project and Donald Caster, for Defendant-Appellant. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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WINKLER, Judge. 

{¶1} Defendant-appellant Derek Cannon appeals the Hamilton County 

Common Pleas Court’s judgment denying his Crim.R. 33(A)(6) motion for a new trial 

on the ground of newly discovered evidence. We affirm the court’s judgment. 

{¶2} Cannon was convicted in 1996 of aggravated murder for the death of 

fellow inmate Darrell Depina during the 1993 riot at the Southern Ohio Correctional 

Facility in Lucasville, Ohio. He unsuccessfully challenged his conviction on direct 

appeal and in postconviction motions filed in 1996, 1998, and 2009. See State v. 

Cannon, 1st Dist. Hamilton No. C-950710, 1997 WL 78596 (Feb. 26, 1997), appeal 

not allowed, 81 Ohio St.3d 1523, 692 N.E.2d 1024 (1998); State v. Cannon, 1st Dist. 

Hamilton No. C-980389 (Mar. 10, 1999); State v. Cannon, 1st Dist. Hamilton No. C090907 (Jan. 12, 2010). 

{¶3} In 2018, Cannon moved under Crim.R. 33(B) for leave to file a Crim.R. 

33(A)(6) motion for a new trial on the ground of newly discovered evidence. On 

appeal from the denial of the motion for leave, we reversed and remanded for a 

hearing on the matter of leave. State v. Cannon, 1st Dist. Hamilton No. C-180474, 

2019-Ohio-3941. 

{¶4} On remand, the common pleas court effectively granted leave when it 

conducted an evidentiary hearing on the January 2020 motion from which this appeal 

derives, seeking a new trial under Crim.R. 33(A)(6) on the ground of newly discovered 

evidence. Following the hearing, the common pleas court denied a new trial. 

{¶5} In this appeal, Cannon presents a single assignment of error 

challenging the denial of his new-trial motion. We find no merit to that challenge. 

The Trial

{¶6} Darrell Depina was one of several inmates who was deemed a “snitch” 

and beaten to death by a “death squad” of fellow inmates during rioting at Lucasville 

prison. An autopsy showed his cause of death to be skull fractures and a brain injury 

from two “heavy injuries” to the head. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶7} State’s witnesses testified to seeing Cannon with the “death squad” in 

the “snitch” section of the prison, with a weapon in his hand, beating Depina about 

the head and body. A witness also testified that Cannon had later confessed to 

having struck someone in the head. Cannon took the stand in his own defense and 

denied entering the area of the prison where the murders had taken place. Other 

defense witnesses corroborated his testimony. 

{¶8} In rebuttal, the state offered the testimony of jailhouse informant 

Dwayne Buckley. Buckley testified that he had met Cannon in the Hamilton County 

Justice Center while serving as a porter in Cannon’s pod, that they had discussed the 

Lucasville riot, and that Cannon had confessed to being part of a group who had 

tortured and killed “a guard” and shanked a “white guy” in another cell. Buckley 

stated that Cannon had declared that he would “beat” the charges and avenge himself 

on any “snitches” who had implicated him. And Buckley stated that he had reported 

Cannon’s confession to law enforcement because he feared for his safety and the 

safety of others after an argument between the two had escalated into threats by 

Cannon against Buckley and his family. 

{¶9} In surrebuttal, Cannon testified that any contact with Buckley had 

been in the presence of two corrections officers. And Cannon denied threatening 

Buckley or confessing to Buckley that he had tortured and murdered a corrections 

officer. 

The Motion for a New Trial

{¶10} In his 2020 motion for a new trial, Cannon argued that newly 

discovered evidence demonstrated a strong probability of a different outcome if a 

new trial were granted. He supported the motion by reference to evidence outside 

the record that had been presented on his motion for leave to file a new-trial motion.

{¶11} That evidence included affidavits made by Buckley in April 2017 and 

May 2018. In his 2017 affidavit, Buckley averred that his trial testimony that 

“Cannon had confessed to [him] that he had murdered the guard * * * was not true.” 
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Buckley also stated that he did not remember Cannon threatening him, and that he 

had testified against Cannon because law enforcement presented him with “[a]n 

opportunity to get back at Cannon” for an altercation between the two, by “offer[ing] 

[him] in exchange for [his statement] * * * some sort of minor incentive, maybe a few 

days off of [his] sentence.” Buckley further stated that, after his release from jail, he 

ignored a subpoena to testify, but a detective came to his place of work, told him he 

“had to testify,” and drove him to court. Buckley asserted that after his testimony, a 

state’s attorney had “said [his] testimony sealed their case against Cannon.” And 

Buckley insisted that he had made his affidavit not under threat or compulsion, but “to 

make things right and prevent this from further weighing on [his] conscience.”

{¶12} But in his 2018 affidavit, offered by the state in opposition to Cannon’s 

motion for leave, Buckley retracted his 2017 affidavit. He averred that he had 

testified truthfully at trial, and that his 2017 affidavit had been false and the product 

of threats against his mother and against his brother’s son, who was incarcerated 

with Cannon at the time.

{¶13} Buckley’s brother responded to Buckley’s May 2018 retraction of his 

2017 affidavit with an affidavit made in June 2018. Buckley’s brother denied that he, 

his son, or his mother had been threatened in connection with Cannon’s case. 

{¶14} Cannon also offered an affidavit made in 1996 by a state’s witness, 

recanting his trial testimony that he had seen Cannon in the prison with a weapon in 

his hand. The witness asserted that he had provided false testimony as part of a plea 

arrangement that allowed him to avoid death-eligible charges and plead guilty to 

felonious assault.

{¶15} An affidavit was also provided by a private investigator engaged by the 

Ohio Innocence Project in late 2016 to locate and interview Buckley after he had 

expressed to family members regret about his testimony at Cannon’s trial. The 

investigator averred that, in interviews beginning in January 2017 that culminated in 

the making of his April 2017 affidavit, Buckley said that he had been “coached” on his 
OHIO FIRST DISTRICT COURT OF APPEALS 

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statement to police, that that statement had been prompted by “pressure on his 

family that ‘turned into something else,’ ” and that his reward had been early release.

{¶16} At the hearing conducted on the new-trial motion, Buckley was put on 

the stand. But he invoked his privilege against self-incrimination, and the state 

declined to grant him immunity. The parties stipulated to the authenticity of 

Buckley’s 2017 affidavit and a video of him signing the affidavit, and the common 

pleas court admitted those exhibits. The parties further stipulated that the recanting 

state’s witness would have testified consistent with his 1996 affidavit.

{¶17} The common pleas court also “accepted” Buckley’s 2018 affidavit “as 

part of the record.” Concerning the “veracity” of that affidavit, the defense called the 

Ohio Innocence Project’s private investigator, Buckley’s brother and nephew, and the 

notary for Buckley’s 2018 affidavit. The notary testified that Buckley had signed the 

2018 affidavit. The private investigator testified that she had contacted Buckley by 

phone in January 2017, after locating him through his brother, and had met with him 

in February and secured his affidavit in April. She further stated that Buckley’s 

family members had been present when he signed the affidavit and had expressed 

fears about a perjury charge for Buckley, but not physical threats by Cannon. 

Buckley’s brother and nephew testified that no family member had been threatened 

by Cannon.

No Abuse of Discretion

{¶18} In this appeal, Cannon presents a single assignment of error 

challenging the denial of his motion for a new trial. We find no merit to this 

challenge. 

{¶19} A new trial may be granted under Crim.R. 33(A)(6) on the ground that 

“new evidence material to the defense is discovered, which the defendant could not 

with reasonable diligence have discovered and produced at trial.” To prevail on a 

Crim.R. 33(A)(6) motion for a new trial on the ground of newly discovered evidence, 

the movant must demonstrate that the evidence “(1) discloses a strong probability 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 merely cumulative to former 

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

v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus. 

{¶20} A motion for a new trial is directed to the sound discretion of the trial 

court, and the court’s decision will not be reversed on appeal in an absence of an 

abuse of that discretion. See State v. Williams, 43 Ohio St.2d 88, 330 N.E.2d 891 

(1975), paragraph two of the syllabus. An abuse of discretion “implies that the 

court’s attitude [was] unreasonable, arbitrary or unconscionable.” State v. Adams, 

62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). An “unreasonable” decision is a 

decision that is not supported by “a sound reasoning process.” AAAA Ents., Inc. v. 

River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 

N.E.2d 597 (1990). 

{¶21} We note at the outset that, in the direct appeal, Cannon assigned as 

error the balance struck by the jury in weighing the evidence adduced at trial. In 

overruling that assignment of error, this court did not rely on Buckley’s trial 

testimony. We acknowledged that that there were “inconsistencies among the 

various witnesses’ testimony,” and that due to “the nature of this case, the credibility 

of a number of witnesses on both sides was certainly suspect, a fact of which the jury 

was assuredly aware.” But based on our review of the testimony provided by 

witnesses other than Buckley, we found “nothing in the record [to] indicate[] that the 

jury lost its way when it chose to believe the state’s witnesses rather than Cannon 

and his witnesses.” And we found “more than substantial evidence upon which the 

jury could reasonably conclude that all of the elements of aggravated murder had 

been proven beyond a reasonable doubt.” Cannon, 1st Dist. Hamilton No. C-950710, 

1997 WL 78596, at *1-3. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶22} Buckley’s 2017 affidavit recanted his trial testimony that Cannon had 

confessed to being part of a group who had tortured and killed “a guard” and then 

gone to “another cell and pulled a white guy out and shanked him.” In its entry 

denying a new trial, the common pleas court noted that the “shanked” “white guy” 

was never identified, by Buckley or otherwise, as the inmate whom Cannon was 

convicted of murdering, Darrell Depina. Nor could such an identification have 

credibly been made, when Depina died of skull fractures and a brain injury from two 

“heavy injuries” to the head. 

{¶23} In deciding the new-trial motion, the court did not discount the 

credibility of Buckley’s affidavit or consider his 2018 retraction of his 2017 

recantation. Instead, applying the Petro analysis, the court denied a new trial upon 

its finding that Buckley’s 2017 recantation would not create the possibility of a 

different outcome if a new trial were granted. That finding was not demonstrably the 

product of an arbitrary or unconscionable attitude and was supported by a sound 

reasoning process. 

Affirmed

{¶24} We, therefore, hold that the common pleas court did not abuse its 

discretion in denying Cannon’s Crim.R. 33(A)(6) motion for a new trial. 

Accordingly, we overrule the assignment of error and affirm the court’s judgment. 

Judgment affirmed. 

CROUSE, P.J., and MYERS, J., concur.

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.