[Cite as State v. Graggs, 2019-Ohio-361.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 18AP-491 

v. : (C.P.C. No. 08CR-1098)

John Q. Graggs, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on February 5, 2019 

 

On brief: Ron O'Brien, Prosecuting Attorney, and

Kimberly M. Bond, for appellee. 

On brief: John Q. Graggs, pro se. 

 

APPEAL from the Franklin County Court of Common Pleas 

SADLER, J. 

{¶ 1} Defendant-appellant, John Q. Graggs, appeals from a judgment of the 

Franklin County Court of Common Pleas denying his petition for postconviction relief, 

without a hearing, due to the lack of subject-matter jurisdiction. For the reasons that 

follow, we reverse. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} This case has been before this court on numerous prior occasions. In a 

previous decision in this case, we summarized the operative facts underlying appellant's 

convictions as follows: 

Marcus Jones ("Jones") leased an apartment at 3566 East 

Main Street from which he and his friend, Jessie Lanier 

("Lanier"), ran a drug trafficking operation, selling bricks of 
No. 18AP-491 2 

cocaine for approximately $ 28,000 each. Around January 5, 

2008, Jones hired Brock, a friend of Lanier's, to help guard 

the cocaine and money kept in the apartment. 

On the evening of January 8, 2008, Jones and his cousin left 

Brock and Lanier in the apartment while they attended a local 

high school basketball game. Lanier later joined the two men 

at the game. After the game, which ended at approximately 

8:30 p.m., Jones and his cousin drove to Jones' father's house. 

Around 9:00 p.m., Jones received a call from Lanier telling 

him to return to his apartment. When Jones and his cousin 

arrived at the apartment at approximately 9:15 p.m., Lanier 

was not there. However, Lanier and a girl arrived about two 

minutes later. The three men entered the apartment and 

found Brock lying face-down on the floor inside the 

apartment; he had been handcuffed and fatally shot in the 

back. The apartment had been ransacked; $35,000 in cash 

and Lanier's revolver were missing. 

For the next 15 minutes or so, Jones and Lanier cleared the 

apartment of items related to their drug trafficking operation, 

including $ 17,000 in cash hidden under the mattress in the 

bedroom. Jones and Lanier placed the items in Lanier's car, 

which he then drove away. Thereafter, Jones and his cousin 

went to a nearby recreation center and called Jones' father. 

Around 9:45 p.m., Jones' father met the two men at the 

recreation center and urged them to call the police. Jones and 

his cousin returned to the apartment and called 911 at 

approximately 9:52 p.m. 

Police responded to the 911 call at approximately 9:54 p.m. 

Evidence collected at the scene included the torn-off fingertip 

of a green latex glove found underneath Brock's body; the 

glove fingertip contained appellant's DNA. A revolver and a 

green latex glove similar to the glove fingertip found at the 

scene were recovered from appellant's residence. The 

revolver was later determined not to be the one that had fired 

any of the bullets recovered from the crime scene. 

As of January 8, 2008, appellant was employed full-time 

earning $16.36 per hour. He lived in a separate household 

from his wife and had difficulty paying his bills, including his 

car payment. However, on January 9, 2008, the day after 

Brock's murder, appellant spent over $5,200 in cash at a local 

jewelry store. On January 14, 2008, he made a $ 2,900 

payment on his car loan. 
No. 18AP-491 3 

Appellant was arrested on February 6, 2008. He told police 

that he knew Brock, but had not seen him in ten years. He 

also stated that he had never been to Jones' apartment and did 

not even know where it was located. 

At trial, the parties stipulated that on January 8, 2008, 

appellant made three calls between 7:42 and 7:43 p.m. from 

his cell phone in the vicinity of a cell tower one-half mile from 

Jones' apartment and made two calls on his cell phone 

between 8:54 and 8:57 p.m. in the vicinity of a cell tower near 

his home. 

State v. Graggs, 10th Dist. No. 10AP-249, 2010-Ohio-5716, ¶ 3-9 ("Graggs II"). 

{¶ 3} Following a jury trial, appellant was convicted of aggravated robbery, 

kidnapping, and aggravated murder in connection with Brock's death. The trial court 

denied appellant's Crim.R. 33 motion for new trial and sentenced appellant to life in prison 

without parole. Appellant appealed to this court from the judgment of conviction and 

sentence. We affirmed appellant's convictions in State v. Graggs, 10th Dist. No. 09AP-339, 

2009-Ohio-5975 ("Graggs I"). 

{¶ 4} In overruling appellant's assignment of error challenging the sufficiency and 

weight of the evidence, we noted, in Graggs I, that the following evidence supported 

appellant's conviction of the charges: (1) a piece of torn latex glove containing defendant's 

DNA was found under the victim's body despite defendant telling detectives he had never 

been to the apartment complex in question and had not seen the victim for 10 years; 

(2) phone records established calls from his cell phone were made in the vicinity of the 

apartment near the time of the shooting; and (3) testimony that $35,000 in cash was 

missing from the apartment, and defendant made large cash purchases at a jewelry store 

the day after the victim's death. Id. at ¶ 25. 

{¶ 5} On November 10, 2009, appellant filed his first petition for postconviction 

relief under R.C. 2953.21(A)(1)(a), which the trial court overruled.1 This court affirmed the 

trial court decision in Graggs II. 

 

1 Appellant alleged his trial counsel provided ineffective assistance by "(1) in stipulating to cell phone records 

without first consulting with him, and in failing to include in the stipulation, or otherwise submit, exculpatory 

cell phone records and testimony pertaining thereto; (2) in failing to prepare and attach to appellant's motion 

for new trial an affidavit from his wife supporting the allegation of juror misconduct; and (3) in failing to call 

Tierra Davis * * * to testify." Graggs II at ¶ 22. 
No. 18AP-491 4 

{¶ 6} On August 8, 2013, appellant filed a motion for leave to file a delayed motion 

for new trial, pursuant to Crim.R. 33, alleging that newly discovered evidence had emerged, 

including the July 15, 2013 affidavit of Kelvin Bridges, which implicated Lanier in Brock's 

murder. The trial court denied the motion, and we affirmed the trial court decision in State 

v. Graggs, 10th Dist. No. 13AP-852, 2014-Ohio-1195, ¶ 13 ("Graggs III"). 

{¶ 7} With respect to Bridges' affidavit, this court in Graggs III noted: 

The key issue is whether [appellant] knew or could have 

discovered through reasonable diligence within the time 

period provided under Crim.R. 33(B) that Bridges had 

potentially relevant information. The Bridges affidavit does 

not directly address whether Bridges knew [appellant] prior 

to July 2013. [Ugbe] Ojile attested in his affidavit that, when 

asked, Bridges indicated that [appellant's] name "didn't 

sound familiar, and he didn't think he knew him." (Ojile 

Affidavit.) Finally, in his own affidavit, [appellant] attested 

that, when asked by Ojile in July 2013 whether he knew 

Bridges, he responded that he did not. As the trial court 

concluded, these statements suggest that [appellant] may not 

have known prior to July 2013 that Bridges potentially had 

information relating to the night of the murder. However, we 

cannot conclude that the trial court abused its discretion by 

finding that the affidavits did not constitute clear and 

convincing evidence to establish that appellant could not have 

learned of the existence of the information Bridges claimed to 

possess within the time prescribed for filing a motion for new 

trial. 

Id. at ¶ 11. 

{¶ 8} Appellant filed a second motion for leave to file a motion for new trial on 

March 24, 2015, alleging that an inmate, Jamal Sealy, had told appellant that Lanier 

admitted to him that he had murdered Brock. The trial court denied the motion, and this 

court affirmed the trial court's ruling in State v. Graggs, 10th Dist. No. 15AP-480, 2015-

Ohio-3990, ¶ 16 ("Graggs IV"). In Graggs IV, this court concluded that even if appellant 

was unavoidably prevented from discovering Sealy's claims about Lanier, "Sealy's 

statement does not dispel the possibility that appellant was still involved in Brock's murder 

as an aider and abettor, as the jury apparently believed because it acquitted him of the 

firearm specifications." Id. at ¶ 12. 
No. 18AP-491 5 

{¶ 9} Appellant filed a third motion for a new trial on July 14, 2016. In support of 

his motion, appellant submitted a June 8, 2016 affidavit from Michael Shepard, who 

claimed to have been in the apartment at the time Brock was shot. According to Shepard's 

affidavit, he and Lanier were the only ones in the apartment with Brock when Brock was 

shot. Though Shepard did not see Lanier shoot Brock because he was in the bathroom, he 

avers that he heard three gunshots, and when he came out of the bathroom, he saw Lanier 

standing over Brock's body with a gun in his hand. The trial court denied appellant's 

motion, and appellant appealed to this court. 

{¶ 10} We affirmed the trial court in State v. Graggs, 10th Dist. No. 16AP-611, 2017-

Ohio-4454 ("Graggs V"). In concluding that Shepard's affidavit did not constitute newly 

discovered evidence, for purposes of Crim.R. 33(B), this court stated: 

The only evidence [appellant] has presented to satisfy his 

burden of clearly and convincingly demonstrating that he was 

unavoidably prevented from discovering Shepard's existence 

is that [appellant] did not know Shepard at the time of Brock's 

murder. But the mere fact that [appellant] did not know of 

Shepard's existence at that time is simply another way of 

saying that he did not know the evidence in question existed. 

This is nothing more than a description of all undiscovered 

evidence. The issue is whether [appellant] has shown that he 

was "unavoidably prevented from the discovery of the 

evidence," not whether he knew it existed or not. 

Id. at ¶ 15. 

{¶ 11} On January 22, 2018, appellant filed the instant petition for postconviction 

relief pursuant to R.C. 2953.21. In support of the petition, appellant submitted several 

affidavits including Bridges' July 15, 2013 affidavit, Shepard's June 8, 2016 affidavit, the 

August 25, 2017 affidavit of Albert Mullins, the October 25, 2017 affidavit of Kim Graggs,2

and the December 13, 2017 affidavit of appellant. Plaintiff-appellee, State of Ohio, did not 

file a response to the petition. In his petition, appellant claimed he was denied his 

constitutional right to effective assistance of trial counsel due to counsel's failure to properly 

investigate the case. Appellant alleges that had trial counsel conducted a proper 

investigation of his case and discovered the exculpatory evidence on which appellant now 

 

2 Kim Graggs merely authenticates a MapQuest search showing that the apartment where the crimes took 

place is just .7 miles from the car wash appellant frequented. Appellant offered this evidence to explain how 

his cell phone records could have shown that he was in the area at the time the crime took place. 
No. 18AP-491 6 

relies in support of his petition for postconviction relief, no reasonable jury could have 

convicted him. Appellant averred in his affidavit, in relevant part, as follows: 

During our second meeting, before Mr. Morgan [appellant's 

trial counsel] told me about the fingertip of the latex glove 

being found in the murder scene apartment with my DNA in 

it, he asked me how could my DNA get into a latex glove. 

I informed Mr. Morgan that I wore latex gloves all the time 

while working. I worked at Yenkin Magestie Paint and went 

through 15 to 20 pair each day. 

 * * * 

After Mr. Morgan told me the location of the murder scene 

apartment, (3566 E. Main St), I informed Mr. Morgan that I 

had used the car wash at the service station at 3140 E. Main 

St all the time. 

* * * 

I gave Mr. Morgan a list of three guys who knew that I used 

latex gloves while washing cars at the car wash that had 

worked for me, which included Albert Mullins. 

* * * 

When I suggested to Mr. Morgan that someone could have 

tracked the fingertip in to the apartment, because I had never 

been to that apartment and it was right down the street from 

the car wash. 

Mr. Morgan told me that he was not going to trial with that. 

Mr. Morgan never said another word concerning Albert or my 

suggested theory. 

The first time I heard that Albert Mullins had worked for, 

stayed at or had anything to do with the Whitehall apartment 

or the people whom were involved in the drug trafficking from 

the Whitehall apartment was during my trial. 

In August 2017, it was the first time that I saw Albert Mullins 

since January 2008, before any arrest. 

During our third or fourth conversation, I was telling Albert 

about I had never been in the Whitehall apartment and did 
No. 18AP-491 7 

not know how a latex glove with my DNA got in to the 

Whitehall apartment. 

This is when Albert told me about how he had always took 

discarded latex gloves that we had used while working to the 

apartment to be reused there, it was not only mine that Albert 

took, but also others latex gloves. 

At no time before August 2017 was I aware of Albert collecting 

the discarded latex gloves of mine or others and taking the 

gloves into the Whitehall apartment or any place else. 

(Appellant's Aff. at 1-2, attached as Ex. E to Jan. 22, 2018 Petition.) 

{¶ 12} On April 11, 2018, the trial court denied the petition without a hearing. The 

trial court found it did not have jurisdiction to entertain appellant's successive petition for 

postconviction relief because appellant failed to make the required showing, pursuant to 

R.C. 2953.23(A)(1)(a), that he was unavoidably prevented from discovery of the facts on 

which his petition relies. In the alternative, the trial court concluded appellant did not 

present clear and convincing evidence that, but for the constitutional error, no reasonable 

jury would have convicted him of robbery, kidnapping, and murder. 

{¶ 13} Appellant timely appealed to this court from the judgment of the trial court. 

II. ASSIGNMENTS OF ERROR 

{¶ 14} Appellant assigns the following as trial court error: 

[1.] The trial court abused its discretion when it dismissed Mr. 

Graggs' successive post conviction petition when the record 

showed that (1) Mr. Graggs was unavoidably prevented from 

discovery of the facts upon which he relies, and (2) but for the 

constitutional error in his trial, no reasonable factfinder would 

have found Mr. Graggs guilty. 

[2.] The trial court abused its discretion when it failed to hold 

an evidentiary hearing on Graggs' successive post conviction 

petition when the full balance of the evidence dehors the 

record, set forth sufficient operative facts that demonstrate 

substantial grounds for relief. 

[3.] Graggs' Conviction and Sentence is voidable because 

Graggs was denied the effective assistance of counsel in 

violation of his right under the Sixth Amendment of the United 

States Constitution. 
No. 18AP-491 8 

III. STANDARD OF REVIEW 

{¶ 15} "The appropriate standard for reviewing a trial court's decision to dismiss a 

petition for postconviction relief, without an evidentiary hearing, involves a mixed question 

of law and fact." State v. Lacking, 10th Dist. No. 14AP-691, 2015-Ohio-1715, ¶ 8, citing 

State v. Tucker, 10th Dist. No. 12AP-158, 2012-Ohio-3477, ¶ 9. "This court must apply a 

manifest weight standard in reviewing a trial court's findings on factual issues underlying 

the substantive grounds for relief, but we must review the trial court's legal conclusions de 

novo." Lacking at ¶ 8. For example, the question whether a court of common pleas 

possesses subject-matter jurisdiction to entertain an untimely or successive petition for 

postconviction relief is a question of law, which appellate courts review de novo. State v. 

Apanovitch, __ Ohio St.3d __, 2018-Ohio-4744, ¶ 24 (slip opinion), quoting State v. Kane, 

10th Dist. No. 16AP-781, 2017-Ohio-7838, ¶ 9. 

IV. LEGAL ANALYSIS 

A. Appellant's First and Second Assignments of Error 

{¶ 16} Because appellant's first and second assignment of error are interrelated, we 

will consider them together. In appellant's first and second assignments of error, appellant 

argues because he made the required showing that he was unavoidably prevented from 

discovering the facts supporting his claim of ineffective assistance of trial counsel and that, 

but for trial counsel's ineffectiveness, no reasonable jury could have convicted him, the trial 

court erred when it dismissed his successive petition for postconviction relief without an 

evidentiary hearing. For the reasons that follow, we agree the trial court erred in ruling on 

the petition, and we remand the matter to the trial court to reconsider the petition. 

{¶ 17} In his latest petition for postconviction relief, appellant contends his trial 

counsel's failure to conduct a proper investigation of his case amounted to a denial or 

infringement of his right to counsel as guaranteed by the Sixth Amendment to the U.S. 

Constitution and Section 10, Article I of the Ohio Constitution. When a petition for 

postconviction relief is either untimely filed or is a successive petition, R.C. 2953.23 governs 

the trial court proceedings and provides, in relevant part, as follows: 

(A) Whether a hearing is or is not held on a petition filed 

pursuant to section 2953.21 of the Revised Code, a court may 

not entertain a petition filed after the expiration of the period 

prescribed in division (A) of that section or a second petition or 
No. 18AP-491 9 

successive petitions for similar relief on behalf of a petitioner 

unless division (A)(1) or (2) of this section applies: 

(1) Both of the following apply: 

(a) Either the petitioner shows that the petitioner was 

unavoidably prevented from discovery of the facts upon 

which the petitioner must rely to present the claim for relief 

* * *. 

(b) The petitioner shows by clear and convincing evidence

that, but for constitutional error at trial, no reasonable 

factfinder would have found the petitioner guilty of the offense 

of which the petitioner was convicted * * *. 

(Emphasis added.) 

{¶ 18} The Supreme Court of Ohio in Apanovitch recently concluded that "a 

petitioner's failure to satisfy R.C. 2953.23(A) deprives a trial court of jurisdiction to 

adjudicate the merits of an untimely or successive postconviction petition." Id. at ¶ 36. 

Accordingly, "a criminal defendant seeking to challenge his conviction through a petition 

for postconviction relief is not automatically entitled to an evidentiary hearing." State v. 

Calhoun, 86 Ohio St.3d 279, 282 (1999), citing State v. Cole, 2 Ohio St.3d 112 (1982). A 

court may dismiss a petition for postconviction relief without a hearing when the petitioner 

fails to submit evidentiary material "demonstrat[ing] that petitioner set forth sufficient 

operative facts to establish substantive grounds for relief." Calhoun at paragraph two of 

the syllabus. 

{¶ 19} In support of the petition, appellant submitted several affidavits including 

Bridges' July 15, 2013 affidavit, Shepard's June 8, 2016 affidavit, Mullins' August 25, 2017 

affidavit, the October 25, 2017 affidavit of Kim Graggs, and the December 13, 2017 affidavit 

of appellant. The trial court found it did not have jurisdiction to entertain appellant's 

successive petition for postconviction relief because appellant failed to make the required 

showing, pursuant to R.C. 2953.23(A)(1)(a), that he was unavoidably prevented from 

discovery of the facts on which his petition relies. In denying appellant's petition, without 

an evidentiary hearing, the trial court noted: "So far as the court can observe, the only 'new' 

material filed with this successive petition is a self-serving affidavit from [appellant], 

notarized on December 13, 2017, and a very short affidavit from Kim Graggs authenticating 
No. 18AP-491 10 

a Map Quest [sic] search, notarized on October 25, 2017." (Apr. 11, 2018 Journal Entry at 

1-2.) The trial court's decision does not mention Mullins' affidavit, even though Mullins' 

affidavit postdates all of appellant's prior postconviction motions and petitions. 

{¶ 20} With respect to the Shepard affidavit, however, the trial court correctly 

determined appellant was not unavoidably prevented from discovery of the facts contained 

therein because appellant had previously submitted the same affidavit in connection with 

his July 14, 2016 motion for leave to file a delayed motion for new trial. In affirming the 

trial court's denial of the motion, this court agreed with the trial court that appellant was 

not unavoidably prevented from discovering the facts in the Shepard affidavit. Similarly, 

appellant previously submitted Bridges' affidavit to the trial court in support of his 

August 8, 2013 motion for leave to file a delayed motion for new trial. The trial court denied 

the motion, and this court affirmed the trial court in Graggs III on finding that appellant 

failed to show he could not have discovered Bridges' evidence within the time prescribed 

for a timely filed motion for new trial. Id. at ¶ 11. Similarly, the affidavit of Kim Graggs 

does not supply any facts that were not readily available to appellant at the time of his 

criminal trial. Thus, appellant cannot now rely on the facts in the affidavits of Shepard, 

Bridges, and Kim Graggs to establish the trial court's jurisdiction of his successive petition 

for postconviction relief. 

{¶ 21} With regard to the Mullins affidavit, however, our review of the trial court 

decision shows the trial court failed to consider this affidavit in ruling on appellant's 

petition. As noted above, the trial court did not mention the Mullins affidavit when it listed 

the "new" evidence filed with the petition even though the affidavit postdated all of 

appellant's prior postconviction motions and petitions. Additionally, the trial court's 

discussion of the Mullins evidence is as follows: 

Albert Mullins is, likewise, not newly discovered. [Apellant's] 

2017 affidavit states that in preparing for his trial "I gave Mr. 

Morgan a list of three guys who knew that I used latex gloves 

while washing cars at the car wash *** which included Albert 

Mullins." (Affidavit marked Ex. "E", at p. 1.) Thereafter, 

Mullins name came up during [appellant's] January 2009 

trial. "The first time I heard that Albert Mullins had worked 

for, stayed at or had anything to do with the Whitehall 

apartment or the people whom [sic] were involved in the drug 

trafficking from the Whitehall apartment was during my 

trial." (Exhibit "E" p. 2.) According to [appellant], he finally 
No. 18AP-491 11 

met with Mullins while both were in prison in August 2017. 

Subsequently "Albert told me about how he had always took 

discarded latex gloves that we had used while working to the 

apartment to be reused there, it was not only mine that Albert 

took, but also others['] latex gloves." (Ex. "E" p. 2). 

On one hand, [appellant] claims that he suggested to his trial 

counsel in 2009 that "someone could have tracked the 

fingertip [of the incriminating glove] in to the apartment" but 

on the other hand asserts "[a]t no time before August 2017 

was I aware of Albert collecting the discarded latex gloves of 

mine or others and taking the gloves into the Whitehall 

apartment." (Ex. "E" p. 2.) These statements appear 

contradictory. More importantly, the absence of any 

statement from Mr. Mullins himself makes the whole 

discussion frustratingly incomplete.

(Emphasis added.) (Apr. 11, 2018 Journal Entry at 2-3.) 

{¶ 22} The trial court decision clearly shows that no consideration was given to 

Mullins' affidavit. Though the trial court did consider appellant's affidavit wherein 

appellant references Mullins' evidence, the trial court's decision shows it did not consult 

Mullins' affidavit before ruling on appellant's petition. Mullins' affidavit, which is attached 

as an exhibit to appellant's petition, provides, in relevant part, as follows: 

1. There were many times that I and others had used latex 

gloves in the apartment of Marcus Jones, during the time he 

lived in the apartment where Fred Brock was killed. 

* * * 

9. I and others helped [appellant] paint other apartments and 

during these times he would always hand out and ware [sic] 

latex gloves. 

10. Many times I and others would help [appellant] detail 

cars, plus two times a week I would help him wash his and his 

wife's car, [appellant] always wore larex gloves. 

* * * 

12. After we were done doing a job, I would clean up the area, 

which included rags, paper towels and latex gloves. I am not 

sure if [appellant] noticed me collecting the used latex gloves 

or even if he cared. 

* * * 
No. 18AP-491 12 

16. I never thought that [appellant] had anything to do with 

the murder, because I knew that he did not know Lanier or 

about the drug dealing going on in the apartment. 

17. In late 2009 after finding out that the A.P.A. had a warrant 

out on me for non reporting to my parole officer, I moved to 

Tennessee. 

18. In 2011, I was arrested in Tennessee and returned to 

Columbus. I was released from prison in 2013 and returned 

to Columbus. 

19. In 2017, I was arrested and returned to the Correctional 

Reception Center, where I ran into [appellant]. It was the first 

time I had saw him since late January 2008. 

20. During a conversation [appellant] stated that he had 

never been in the apartment and did not know how his DNA 

got in the apartment. 

21. I was under the impression that he was talking about his 

blood, hair or fingerprints, until in another conversation he 

told me about it was a fingertip of a latex glove. 

22. That is when I told him about how I had collected the used 

latex gloves from our worksites, which included his and took 

the gloves to the apartment many times to be reused. 

23. Up to that point I had no idea that the used latex gloves I 

had collected to be reused in the apartment may have had 

anything to do with [appellant's] case. 

24. At no time did anyone talk to me about anything to do 

with the murder of Brock or [appellant]. 

(Sic passim.) (Mullins' Aff. at 1-3, attached as Ex. C to Jan. 22, 2018 Petition.) 

{¶ 23} Appellant argues that he was unavoidably prevented from discovery of the 

facts contained in Mullins' affidavit within the time permitted by R.C. 2953.21 to file a 

timely petition for postconviction relief. More particularly, appellant claims he was 

unaware of Mullins' potentially exculpatory testimony until August 2017, when he ran into 

Mullins in prison and that he was unable to learn of Mullins' evidence until that time. The 

trial court determined appellant was not unavoidably prevented from discovering Mullins' 

potentially exculpatory testimony because he had told his trial counsel that others, 

including Mullins, could have been the source of the latex glove containing his DNA and 
No. 18AP-491 13 

because appellant learned during his trial that Mullins had been one of the individuals 

involved in the drug business at Brock's home. 

{¶ 24} "[I]n order to obtain relief pursuant to Crim.R. 33(B) or R.C. 2953.23, a 

movant/petitioner must satisfy the threshold requirement of unavoidable prevention." 

State v. Waddy, 10th Dist. No. 15AP-397, 2016-Ohio-4911, ¶ 27. " 'The phrase "unavoidably 

prevented" in R.C. 2953.23(A)(1)(a) means that a defendant was unaware of those facts and 

was unable to learn of them through reasonable diligence.' " Id. at ¶ 28, quoting State v. 

Howard, 10th Dist. No. 15AP-161, 2016-Ohio-504, ¶ 21. 

{¶ 25} The trial court denied appellant's petition for postconviction relief without an 

evidentiary hearing and, in doing so, did not consider Mullins' affidavit. In the context of a 

petition for postconviction relief, "the trial court may, under appropriate circumstances, 

deem affidavit testimony to lack credibility without first observing or examining the 

affiant." State v. Taylor, 10th Dist. No. 14AP-166, 2014-Ohio-3574, ¶ 16, citing State v. 

Davis, 10th Dist. No. 13AP-98, 2014-Ohio-90, ¶ 26, citing Calhoun, 86 Ohio St.3d at 284. 

"[I]n determining the credibility of supporting affidavits in postconviction relief, trial courts 

should consider all relevant factors, including: '(1) whether the judge reviewing the 

postconviction relief petition also presided at the trial, (2) whether multiple affidavits 

contain nearly identical language, or otherwise appear to have been drafted by the same 

person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are 

relatives of the petitioner, or otherwise interested in the success of the petitioner's efforts, 

and (5) whether the affidavits contradict evidence proffered by the defense at trial.' " Taylor

at ¶ 23, quoting Calhoun at 285. A trial court may also find sworn testimony in an affidavit 

to be contradicted by evidence in the record by the same witness or to be internally 

inconsistent, thereby weakening the credibility of that testimony. Taylor at ¶ 24. Such 

credibility determinations are within the trial court's discretion and an appellate court 

should not overturn the trial court's determinations absent an abuse of discretion. Calhoun

at 285. 

{¶ 26} If appellant's affidavit is believed, appellant's trial counsel told appellant that 

locating other possible sources of the latex glove containing his DNA was not an effective 

theory of innocence. According to appellant's affidavit, when he told trial counsel about 

other possible sources of the latex glove, including Mullins, trial counsel told appellant that 
No. 18AP-491 14 

"he was not going to trial with that" and "never said another word concerning Albert or my 

suggested theory." (Appellant's Aff. at 1.) We also note the trial transcript in this case shows 

that local law enforcement were not able to locate Mullins prior to trial and did not know 

Mullins' whereabouts at the time of trial.3 Accordingly, even though appellant learned 

during his criminal trial that Mullins was part of the drug ring that operated out of the 

apartment where Brock was killed, the record supports a finding that Mullins' whereabouts 

were unknown at that time.4

{¶ 27} Furthermore, if Mullins' affidavit is believed, Mullins left Ohio and "[i]n late 

2009, after finding out that the A.P.A. had a warrant out on [him] for non reporting to [his] 

parole officer, [he] moved to Tennessee," and he did not return until 2011 when he was 

arrested in Tennessee and returned to Ohio. (Mullins' Aff. at 2.) Mullins averred that he 

was incarcerated until 2013 and then arrested again in 2017 when he ran into appellant at 

the Corrections Reception Center. Appellant averred that in August 2017, he had several 

conversations with Mullins and that Mullins eventually told him about the latex gloves. 

Thus, the evidence in the record, including Mullins' affidavit, provides some evidentiary 

 

3Detective Steve Brown of the Whitehall Police Department testified at appellant's trial that he investigated 

the murder that occurred on January 8, 2008. Brown testified that police obtained DNA samples from several 

individuals who had either been seen in the area on or about the time of the crime or who were suspected of 

being involved in drug trafficking in the area including appellant, ones, Brian Boreman, Destiny Wade, and 

Lanier. Brown explained that he was attempting to match the DNA profiles of these individuals to the DNA 

evidence found on latex gloves in the apartment. On direct examination by the prosecutor, Brown testified as 

follows: 

Q: A final name, Albert Mullins. Did the name Albert Mullins come in to 

the picture at some point? 

A. Yea. 

Q. When did Albert Mullins' name pop up? 

A. After [appellant's] arrest. 

Q. Did you ever get an opportunity to speak to Mr. Mullins? 

A. No. 

Q. Did you ever meet Mr. Mullins? 

A. No. 

Q. Did you ever find Mr. Mullins? 

A. Did not find him. 

Q. So to this day, do you know where Albert Mullins is? 

A. No. 

(Jan. 16, 2009 Tr. Vol. IV at 615.) 

4 Under former R.C. 2953.21(A)(1)(b)(2), the 180-day period for filing a timely petition for postconviction 

relief commenced on May 14, 2009, when the trial transcript was filed with this court in appellant's appeal 

from the judgment of conviction and sentence and ended on November 10, 2010. 
No. 18AP-491 15 

support for appellant's claim that he was unavoidably prevented from discovering the facts 

on which his petition relies until August 2017. Mullins' affidavit is dated August 25, 2017, 

and appellant filed his petition for postconviction relief on January 22, 2018. 

{¶ 28} Because the trial court did not consider Mullins' affidavit and did not conduct 

a credibility analysis of the affidavits submitted in support of his petition, the trial court 

erred by dismissing the petition, without a hearing, on finding that appellant failed to show 

he was unavoidably prevented from discovering the facts on which his petition relies. 

Under the circumstances, any determination by this court of the merits of appellant's claim 

that he was unavoidably prevented from discovering the facts supporting his petition would 

be premature. Calhoun at 285. It is for the trial court, in the first instance, to conduct a 

credibility analysis of the affidavits submitted by appellant and to determine whether 

appellant is entitled to a hearing on the merits of the petition. Id. See also R.C. 

2953.22(D).5

1. R.C. 2953.23(A)(1)(b) "but for the constitutional error."

{¶ 29} The trial court further concluded, pursuant to R.C. 2953.23(A)(1)(b), that 

"there is not clear and convincing evidence that, but for constitutional error at trial, 

[appellant] would have avoided criminal liability." (Apr. 11, 2018 Journal Entry at 3.) In 

reaching this conclusion, the trial court reasoned as follows: 

The[] mere fact that others using the Whitehall apartment for 

drug storage and trafficking might have taken used latex 

gloves in to the apartment – even a glove containing 

[appellant's] DNA – is not necessarily exculpatory for 

[appellant]. He too might have gone there, or so any jury 

might reasonably conclude when a piece of a latex glove was 

found near the body after the murder, and other evidence 

independently pointed toward [appellant]. Thus, the second 

requirement of R.C. 2953.23(A)(1)(b) has also not been met. 

(Emphasis added.) (Apr. 11, 2018 Journal Entry at 3.) 

{¶ 30} The trial court reached its conclusion under R.C. 2953.23(A)(1)(b) without 

the benefit of reviewing Mullins' affidavit. Our review of Mullins' affidavit leads us to the 

conclusion that the facts contained therein, if believed, cast doubt on the one piece of 

physical evidence submitted by the state that places appellant inside the apartment where 

 

5 We note that the trial judge who presided over appellant's criminal trial in 2009 is the same judge who ruled 

on appellant's 2018 petition for postconviction relief. 
No. 18AP-491 16 

the crimes took place and contradicts appellant's statement to police that he had never been 

in the apartment where Brock was killed. Though the cell phone records "established that 

calls from appellant's cell phone were made in the vicinity of Marcus's apartment near the 

time of the shooting," absent the DNA evidence, the phone records alone do not prove 

appellant was in the apartment at the time the crimes were committed. Graggs I, 2009-

Ohio-5975, at ¶ 25. Similarly, while appellant's spending spree the day after the crimes 

provides circumstantial evidence appellant may have come into possession of the $35,000 

in cash stolen from the apartment where the crimes took place, the theory of guilt the state 

presented to the jury was based exclusively on appellant's presence in the apartment at the 

time Brock was shot.6

{¶ 31} In our view, it is one thing for appellant to aver that Mullins might have 

transferred a glove containing appellant's DNA to the apartment where the crimes took 

place but it is quite another for Mullins to aver that he did, in fact, physically transfer latex 

gloves containing appellant's DNA to the crime scene where a latex glove containing 

appellant's DNA was later found by police under Brock's lifeless body. Mullins' testimony 

provides an explanation of how appellant's DNA could be found on the tip of a latex glove 

near Brock's body without appellant ever being present in the apartment where the crimes 

took place. In the absence of DNA evidence found on the latex glove, there was no physical 

evidence to support a finding that appellant had ever been in that apartment. Under the 

state's theory of guilt, appellant could not have been convicted either as a principal offender 

or as an aider and abettor to murder, aggravated burglary, and kidnapping if he was not in 

the apartment with Brock at the time the crimes were committed. If appellant's affidavit is 

to be believed, he informed his trial counsel prior to trial that certain other individuals, 

 

6 In closing argument, the prosecutor told the jury the following: 

There's no other reasonable explanation for [appellant’s] DNA being in a 

rubber glove at the scene of a murder other than the fact that he was wearing 

that glove and somehow that glove got broke apart and got ripped off when 

taking it off and left a piece of it there. Bad for him. 

No other reasonable explanation as to his DNA being in a rubber glove found 

at the scene of a homicide, and, again, ladies and gentlemen, in an 

apartment, by his own words, he's never been in in his life. 

(Jan. 16, 2009 Tr. Vol. V at 771-72.) 
No. 18AP-491 17 

including Mullins, might be the source of the latex glove containing appellant's DNA, but 

his counsel dismissed appellant's theory and refused to investigate the matter. 

{¶ 32} As previously stated, the trial court's decision denying appellant's petition, 

without a hearing, shows the trial court did not give any consideration of Mullins' affidavit. 

The trial court found certain statements in appellant's affidavit "appear contradictory" but, 

in reaching that conclusion, the trial court acknowledged "the absence of any statement 

from Mr. Mullins himself makes the whole discussion frustratingly incomplete." (Apr. 11, 

2018 Journal Entry at 3.) Thus, the trial court did not fully and fairly consider the relevant 

evidence submitted by appellant in support of his claim of ineffective assistance of trial 

counsel. 

{¶ 33} "Where ineffective assistance of counsel is alleged in a petition for 

postconviction relief, the defendant, in order to secure a hearing on his petition, must 

proffer evidence which, if believed, would establish not only that his trial counsel had 

substantially violated at least one of a defense attorney's essential duties to his client but 

also that said violation was prejudicial to the defendant." Cole, 2 Ohio St.3d at 114, citing 

State v. Jackson, 64 Ohio St.2d 107, 110 (1980). Broad assertions without a further 

demonstration of prejudice and conclusory allegations to the effect that a defendant has 

been denied ineffective assistance of counsel are inadequate as a matter of law to impose 

an evidentiary hearing. Jackson at 111. Generally, the petitioner satisfies his initial burden 

by submitting evidence of matters outside the record which raises a colorable claim of 

ineffective assistance of counsel. State v. Hester, 45 Ohio St.2d 71, 79 (1976). See also State 

v. Bethel, 10th Dist. No. 07AP-810, 2008-Ohio-2697, ¶ 33-34. 

{¶ 34} For purposes of a successive petition for postconviction relief, in order to 

prove ineffective assistance of counsel, a petitioner must show, by clear and convincing 

evidence, that his lawyer's conduct fell below reasonable professional standards and that, 

but for trial counsel's ineffectiveness, no reasonable jury would have found him guilty of 

the offenses of which he was convicted. R.C. 2953.23(A)(1)(b); Strickland v. Washington, 

466 U.S. 668, 687-94 (1984); State v. Johnson, 88 Ohio St.3d 95, 108 (2000). Reasonable 

investigation is a critical component of competent representation, and the prejudicial 

failure to conduct reasonable investigation is ineffective assistance. Strickland at 690-91. 

"Counsel for a criminal accused has 'a duty to make reasonable investigations or to make a 
No. 18AP-491 18 

reasonable decision that makes particular investigations unnecessary.' " Howard, 2016-

Ohio-504, at ¶ 25, quoting Strickland at 691. 

{¶ 35} Because the trial court, in this case, did not consider Mullins' affidavit and 

did not conduct a credibility analysis of the relevant affidavits submitted in support of his 

petition, a determination by this court of the merits of appellant's claim of ineffective 

assistance of counsel would be premature. It is for the trial court, in the first instance, to 

conduct an evaluation of the credibility of the relevant affidavits and to make a 

determination whether appellant is entitled to an evidentiary hearing on the merits of his 

petition. Because the necessary credibility analysis is a matter within the discretion of the 

trial court, this court will not conduct the analysis in the first instance. Calhoun, 86 Ohio 

St.3d at 325. 

{¶ 36} For the foregoing reasons, we hold the trial court erred when it denied 

appellant's petition without giving any consideration to Mullins' affidavit and without 

conducting the credibility analysis necessary to determine whether appellant is entitled to 

a hearing on his petition. R.C. 2953.23; Apanovitch. Accordingly, we sustain appellant's 

first and second assignments of error, in part, and remand this matter to the trial court for 

further proceedings on appellant's petition.7

B. Third Assignment of Error 

{¶ 37} In his third assignment of error, appellant contends that his convictions are 

"voidable" because he was denied the effective assistance of trial counsel. (Appellant's Brief 

at 20.) In light of our resolution of appellant's first and second assignments of error and 

our order remanding this matter to the trial court for further proceedings, appellant's third 

assignment of error is moot. App.R. 12(A)(1)(C). 

 

 

7 The trial court's alternative holding that res judicata bars appellant for raising his ineffective assistance of 

counsel claim because he has previously raised claims of ineffective assistance of trial counsel in state and 

federal court is also without merit. Appellant's discovery of the facts in Mullins' affidavit postdates all prior 

proceedings in this matter, either in state or federal court. Consequently, res judicata would not present a bar 

to appellant's petition for postconviction relief predicated on trial counsel's failure to investigate Mullins' 

evidence if the trial court determines, on remand, that appellant was unavoidably prevented from discovering 

the facts in Mullins' affidavit prior to August 2017. See Kane, 2017-Ohio-7838, at ¶ 15 (the purpose behind 

R.C. 2953.23 is to permit trial courts to consider factual information that may come to light after a defendant's 

trial). 
No. 18AP-491 19 

V. CONCLUSION 

{¶ 38} Having sustained appellant's first and second assignments of error, in part, 

and having found appellant's third assignment of error moot, we hereby reverse the 

judgment of the Franklin County Court of Common Pleas and remand the matter for 

further proceedings consistent with this decision. 

Judgment reversed; 

cause remanded. 

DORRIAN and LUPER SCHUSTER, JJ., concur. 

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