State v. Jones

[Cite as State v. Jones, 2026-Ohio-1455.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                            No. 115535
                 v.                               :

MIKE JONES,                                       :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: April 23, 2026


             Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CR-01-411588-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Gregory J. Ochocki, Assistant Prosecuting
                 Attorney, for appellee.

                 Patituce & Associates, LLC, Megan M. Patituce, and
                 Joseph C. Patituce, for appellant.


DEENA R. CALABRESE, J.:

                Defendant-appellant Mike Jones appeals the trial court’s denial of his

combined untimely and successive petition for postconviction relief and his motion

for leave to file a motion for new trial. Finding no merit to the appeal, we affirm.
I. History

  A. Factual Background and Direct Appeal

             This case involves the August 15, 2001 shooting death of 12-year-old

W.C. The Cuyahoga County Grand Jury returned an indictment charging Jones with

one count of murder in violation of R.C. 2903.02 with a three-year firearm

specification pursuant to R.C. 2941.145. In November 2001, the case was tried to a

jury, which returned a guilty verdict. The trial court sentenced Jones to a term of

imprisonment of 15 years to life, to be served consecutively to a three-year term on

the firearm specification.

             On direct appeal, this court overruled all of Jones’s 13 assignments of

error and affirmed his convictions. That 2002 opinion summarized the facts as

follows:

      The record reflects that on August 15, 2001, a white Chevrolet carrying
      several men drove down E. 120th Street and stopped at the intersection
      of E. 120th Street and Kelton Avenue alongside Hurlon Hill, who was
      sitting on a bicycle at that intersection. A male from the vehicle asked
      Hill: “Are you Rockland?” When Hill answered affirmatively, the male
      said: “Y’all killed my dude.” Hill, aware that a Rockland member had
      killed someone, became concerned that the males in the vehicle were
      looking to retaliate against Rockland for that killing. He jumped off his
      bike, yelling “dudes coming”, and ran to 11811 Kelton Avenue, a
      Rockland hangout, alerting Mike Jones, Sundiata Langford, and
      Jujuan Norman, all of whom were present at that time. The Chevy then
      drove past 11811 Kelton Avenue, swung around squealing its tires and
      headed back to the intersection at E. 120th Street, swerving to hit Hill’s
      abandoned bicycle, and continuing north on E. 120th Street. Jones,
      Langford, and Norman, having each grabbed a gun, began shooting in
      the direction of the car.

      Meanwhile, three children, [W.C., J.K., Jr., and R.W.], sitting on the
      porch of [W.C.]’s house on East 120th Street, near the Kelton
      intersection, watched these events. [W.C. and R.W.] walked down the
      street to get a better view. When [L.S.], [W.C.]’s sister, heard the squeal
      of car tires and gunshots, she called the boys and they quickly ran
      inside. A bullet then came through the wall of the home, struck 12-
      year-old [W.C.] in the back, and lodged in his skull, killing him.

      A forensic test later showed that the bullet had entered the house from
      the direction of Kelton Avenue. In addition, the police described the
      bullet recovered from his body as a 7.62 round of ammunition. They
      later recovered a 7.62 shell casing from 11815 Kelton Avenue, the
      property immediately adjacent to 11811.

      When describing the incident to the police, Jones, Langford, and
      Norman each admitted firing a weapon from 11811 Kelton in the
      direction of the white car, but none admitted to using a weapon capable
      of firing a 7.62 round of ammunition.

      Thereafter, a grand jury indicted Jones, Norman, and Langford for the
      murder of [W.C.], charging that they caused the death of [W.C.] as a
      proximate result of committing or attempting to commit an offense of
      violence that is a felony of the first or second degree, in violation of
      Section 2903.02 of the Revised Code. The indictment also included a
      three year firearm specification for Jones.

      At their joint trial, Hill testified for the state that the day after the
      shooting, Jones told him that the guys in the white car fired shots at
      him, and he, Langford, and Norman fired back.

      Detective Denise Kovach read a written statement which Jones had
      given to the police. In this statement, Jones claimed that after Hill
      came running down the street screaming about the approaching
      vehicle, he grabbed his gun which had been hidden under some weeds
      and dirt in the driveway of the house at 11811 Kelton. He stated that
      two males hanging out of the white vehicle shot at him and Norman,
      and continued to shoot while the vehicle proceeded to the intersection
      of E. 120th Street and Kelton. He stated that he had used a .22 pistol,
      which he disposed of the next day. He also stated that the males in the
      white vehicle were from the Bloods and the shooting related to
      retaliation[.]

State v. Jones, 2002-Ohio-6045, ¶ 1-7 (8th Dist.) (“Jones I”). Jones filed an

application to reopen the appeal. This court denied the application in State v. Jones,
2003-Ohio-4397 (8th Dist.). Jones appealed to the Ohio Supreme Court, which

declined jurisdiction. State v. Jones, 2003-Ohio-6458.

  B. First Petition for Postconviction Relief

               Jones filed his first petition for postconviction relief on September 23,

2002. He claimed that his trial counsel was ineffective in failing to interview and

call an alibi witness, Darryl Martin. Jones alleged that Martin, who supplied an

affidavit, would have served as an alibi witness who saw Jones and his codefendants

running in the opposite direction before the shooting began.

               The trial court denied Jones’s first petition for postconviction relief

without a hearing, and this court affirmed in State v. Jones, 2004-Ohio-3868 (8th

Dist.) (“Jones II”). In short, this court concluded that trial counsel’s decision not to

call Martin was a trial tactic. As already discussed above, Jones “himself had made

a statement to the police that he had fired a gun at the white car carrying the rival

gang members,” claiming “that he was shooting in self-defense.” Id. at ¶ 13. This

court further explained:

       [Martin] claimed in his affidavit that he saw [Jones] running away
       before any shots were fired. [Jones’s] own admission that he had fired
       shots at the rival gang contradicts the witness’s statement. The
       affidavit therefore weakens the self-defense argument which was the
       basis of defendant’s case. The attorney would have jeopardized
       defendant’s self-defense alibi if counsel presented a different theory.

Id. at ¶ 14.

  C. First Motion for Leave to File a Motion for New Trial

               On October 29, 2014, Jones filed a motion for leave to file a motion for

new trial. He supported the motion for leave with his own affidavit, in which he
contradicted the 2002 Darryl Martin affidavit and reverted to the story he told

police, i.e., that he fired at the white car in self-defense using a .22-caliber pistol.

Jones claimed in his affidavit that he saw “a guy . . . hanging out the back window

[of the white vehicle] brandishing a weapon and then shots were fired,” after which

he “returned fire.” (Oct. 7, 2014 Jones affidavit at ¶ 8-9.)

             Jones also alleged that when he gave a statement to police the next day

he “turned over the .22 automatic pistol [he] fired the night before[.]” (Oct. 7, 2014

Jones affidavit at ¶ 13.) We note that Jones’s signed statement is actually dated

August 20, 2001, five days after the shooting. At that time, Jones indicated that he

“got rid of” the .22-caliber pistol “the next day” by giving it to a Rayshawn Black.

The latter account is consistent with the trial testimony summarized in this court’s

2002 opinion. A detective, referring to the August 20, 2001 statement, testified that

Jones indicated “that he had used a .22 pistol, which he disposed of the next day.”

Jones I at ¶ 7.

              The trial court denied the motion for leave by entry dated November 17,

2014. Jones appealed, but on January 6, 2015, this court dismissed his appeal for

failure to file a praecipe.

  D. Application for DNA Testing

              On November 18, 2021, Jones filed an application for DNA testing of

the spent 7.62-caliber shell casing, which the State opposed. The trial court granted

the motion after a hearing. After testing, however, Jones’s counsel notified the trial

court that no further action would be pursued with respect to test results.
  E. Untimely, Successive Petition for Postconviction Relief and Motion
     for Leave to File Motion for New Trial

              On February 21, 2025, Jones filed the combined untimely, successive

motion for postconviction relief and motion for leave to file motion for new trial

(“Successive PCR and Motion for Leave”) that is the subject of his appeal. His

supporting brief contained a two-page list of exhibits followed by 76 pages of

exhibits. Jones essentially concedes that virtually all of these exhibits related to

matters that could have, or in fact were, explored at trial, in trial court proceedings

following his conviction, or on appeal. For example, exhibit No. 1 is the September

2002 Darryl Martin alibi affidavit that was the subject of Jones’s unsuccessful

petition for postconviction relief in 2002, i.e., the affidavit comprehensively

addressed in Jones II. The Successive PCR and Motion for Leave also includes many

exhibits available at the time of trial, including neighborhood maps, various dated

police reports, the statements        given   by Jones      and his codefendants,

contemporaneous news articles, and the State’s initial and supplementary discovery

responses.

             The brief in support of the Successive PCR and Motion for Leave

likewise explores many arguments made, or that could have been made, in a timely

fashion. These include various references to the layout of the neighborhood,

arguments concerning purported witness accounts as summarized by journalists in

articles published before trial, criticism of police work regarding the search for the

alleged rival gang members in the white vehicle, arguments that the jury made a bad
decision in rejecting Jones’s self-defense theory, and criticisms of the State’s

position at trial regarding the merits of his self-defense theory.

              We agree with the State that the only arguably relevant materials

attached to the Successive PCR and Motion for Leave, i.e., materials allegedly

unavailable to Jones prior to the deadline for filing a timely petition for

postconviction relief or timely motion for new trial, are a November 20, 2001

interoffice memorandum authored by a Cuyahoga County assistant prosecuting

attorney and an October 23, 2024 affidavit from an individual identified as Larissa

Taylor. These items, attached to the Successive PCR and Motion for Leave as exhibit

Nos. 23 and 24 respectively, were Jones’s sole focus at oral argument. Importantly,

Jones does not argue that any of the other exhibits attached to his Successive PCR

and Motion for Leave were previously unavailable to him and that he was

unavoidably prevented from discovering them.

              Exhibit No. 23, an interoffice memorandum authored by an assistant

prosecutor, did not directly concern Jones’s case. It instead addressed whether

capital murder charges should be pursued in the case of State v. Freeman, Cuyahoga

C.P. No. CR-01-410924. Sammon addressed the memorandum to William D.

Mason, the Cuyahoga County prosecuting attorney at the time, with copies to seven

additional individuals, none of whom appeared as trial counsel in Jones’s case. In

addressing whether Freeman (not Jones) should face capital murder charges,

Sammon wrote, inter alia:
      You should know that [Freeman] is really bad. He has another capital
      case pending (CR410993). Please be further advised that this
      defendant’s friends were responsible for the death of a 12 year old
      [W.C.], who was killed when a bullet penetrated his house. The
      defendants in that case were friends of Freeman who returned fire
      when friends of one of the victims in Freeman’s other capital case shot
      at a Thurlin Hill, another friend of Freeman’s who happens to be a
      State’s witness in this case.

              Exhibit No. 24 is Taylor’s affidavit. She avers that she was present for

the shooting, that she saw gunshots from the white vehicle, and that she was never

interviewed by police or prosecutors. She claims in her affidavit that at the time of

the shooting, she had been scared to come forward.

              The State opposed Jones’s Successive PCR and Motion for Leave,

arguing that Jones had failed to establish that he was unavoidably prevented from

discovering the referenced materials within the relevant deadlines and that his

Successive PCR and Motion for Leave was barred by the doctrine of res judicata.

              The trial court denied Jones’s Successive PCR and Motion for Leave.

Applying the same basic doctrines governing both an untimely motion for

postconviction relief and a motion for leave to file an untimely motion for new trial,

the trial court principally concluded that “[t]here was no evidentiary basis provided

for the Court to reliably [conclude] that Defendant was unavoidably prevented from

gathering the allegedly exculpatory evidence at the time of trial.” (July 14, 2025

journal entry at p. 2.)

              This timely appeal followed.

II. Assignments of Error

              Jones presents three assignments of error for our review:
       ASSIGNMENT OF ERROR 1: The trial court abused its discretion in
       denying Mr. Jones’s Post-Conviction Petition because Mr. Jones
       established his rights were violated, he was unavoidably prevented
       from timely discovery of the evidence, and no reasonable factfinder
       would have found Mr. Jones guilty.

       ASSIGNMENT OF ERROR 2: The trial court erred in concluding that
       Mr. Jones’s Post-Conviction Petition was barred by res judicata.

       ASSIGNMENT OF ERROR 3: The trial court abused its discretion in
       denying Mr. Jones’s Motion for Leave filed pursuant to Crim.R. 33.

               For ease of discussion, we address Jones’s assignments of error out of

order. We find no merit to appellant’s first and third assignments of error. As

explained more fully below, we overrule Jones’s second assignment of error in part

and find that the assignment of error is in all other respects moot.

III. Standards of Review

  A. Untimely, Successive Petition for Postconviction Relief

               R.C. 2953.21 through 2953.23 govern petitions for postconviction

relief. Such a petition “‘is a collateral civil attack on their criminal conviction.’” State

v. Jackson, 2025-Ohio-2363, ¶ 24 (8th Dist.), quoting State v. Kennedy, 2024-

Ohio-66, ¶ 23 (8th Dist.), citing State v. Gondor, 2006-Ohio-6679, ¶ 48.

               Pursuant to R.C. 2953.21(A)(1)(a)(i), any person who has been

convicted of a criminal offense and 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 may 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.     A petitioner may file a supporting affidavit and other

documentary evidence in support of their claim for relief. R.C. 2953.21(A)(1)(b).

See also Jackson at ¶ 25. “A postconviction petition, however, does not provide a

petitioner a second opportunity to litigate the conviction.” Kennedy at ¶ 23.

               The right to file a petition for postconviction relief arises from statute,

not a constitutional right. Jackson at ¶ 24, citing State v. Apanovitch, 2018-Ohio-

4744, ¶ 35, and State v. Broom, 2016-Ohio-1028, ¶ 28.                  Accordingly, “[a]

postconviction petitioner . . . ‘receives no more rights than those granted by the

statute.’” Apanovitch at ¶ 35, quoting State v. Calhoun, 86 Ohio St.3d 279, 281

(1999). “That includes the right to have one’s claim heard at all[.]” Apanovitch at

¶ 36.

               A petitioner seeking postconviction relief “has a limited time within

which to do so.” State v. Johnson, 2024-Ohio-134, ¶ 9. “A trial court generally has

no jurisdiction to consider an untimely or successive petition.”               Id. at ¶ 1.

R.C. 2953.21(A)(2) provides that a petition for postconviction relief shall be filed

within 365 days from the filing of the trial transcripts in the petitioner’s direct appeal

or, if a direct appeal was not pursued, 365 days after the expiration of time in which

a direct appeal could have been filed.1 “A trial court does not have subject-matter

jurisdiction to adjudicate a postconviction petition that is untimely — i.e., filed



        1At the time of Jones’s convictions, the deadline for filing a petition for
postconviction relief was 180 days, not 365. See former R.C. 2953.21(A)(2), 2010 Sub.S.B.
No. 77. The shorter deadline makes no material difference in this case. Jones’s successive,
untimely petition was filed well after either statutory deadline.
outside the statutory deadline under R.C. 2953.21(A)(2) or successive — i.e., a

second or subsequent petition.” Johnson at ¶ 10, citing Apanovitch at ¶ 36, 38.

                R.C. 2953.23(A)(1) and (2), however, provide “exceptions to this

jurisdictional bar.” Id. As in Johnson, “[o]ne is relevant here.” Id. at ¶ 10.

Specifically:

      [a] trial court may entertain an untimely or successive petition if “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” and “[t]he petitioner shows by clear and convincing
      evidence that, but for constitutional error at trial, no reasonable
      factfinder would have found the petitioner guilty.”

Id. at ¶ 10, quoting R.C. 2953.23(A)(1)(a) and (b).2 As the Ohio Supreme Court

stated in Apanovitch:

      R.C. 2953.23(A) provides that “a court may not entertain a petition
      filed after the expiration of the period prescribed in [R.C. 2953.21(A)]
      or a second petition or successive petitions for similar relief on behalf
      of a petitioner unless” one of the exceptions in R.C. 2953.23(A) applies.
      (Emphasis added.) Therefore, 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.

(Emphasis added.) Apanovitch at ¶ 36. See also Kennedy, 2024-Ohio-66, at ¶ 27

(8th Dist.) (“Because the timeliness requirement of R.C. 2953.23 is jurisdictional, a

trial court does not have jurisdiction to entertain an untimely filed petition for




      2 Here, as in Johnson, Jones does not claim that “the United States Supreme Court

recognized a new federal or state right that applies retroactively to persons in the
petitioner’s situation[.]” R.C. 2953.23(A)(1)(a). See Johnson at ¶ 10, fn. 2. He therefore
must “show that he was ‘unavoidably prevented’ from discovering the facts upon which he
must rely to present his claim for relief.” State v. Orr, 2025-Ohio-5514, ¶ 39 (8th Dist.),
quoting R.C. 2953.23(A)(1)(a).
postconviction relief that does not meet the exceptions set forth in R.C.

2953.23(A)(1).”).

              We ordinarily review a trial court’s decision granting or denying a

petition for postconviction relief under an abuse-of-discretion standard. Jackson at

¶ 28. “However, whether the trial court possessed subject-matter jurisdiction to

entertain a petition for postconviction relief is a question of law subject to de novo

review.” Kennedy at ¶ 30, citing Apanovitch at ¶ 24. See also Johnson at ¶ 11; State

v. Bethel, 2022-Ohio-783, ¶ 20. “In a de novo review, we review the merits of the

case independently, without any deference to the trial court.” Kennedy at ¶ 30,

citing Sosic v. Stephen Hovancsek & Assocs., Inc., 2021-Ohio-2592, ¶ 21 (8th Dist.).

  B. Crim.R. 33(B) Motion for Leave to File Motion for New Trial

              A motion for leave to file a motion for new trial is governed by

Crim.R. 33. As this court recently explained:

      Crim.R. 33(A)(6) allows a trial court to grant a new trial where “new
      evidence material to the defense is discovered which the defendant
      could not with reasonable diligence have discovered and produced at
      the trial” and the defendant’s “substantial rights” are “materially”
      “affect[ed].”

      A defendant whose case was tried to a jury must file a motion for a new
      trial based on newly discovered evidence within 120 days after the
      jury’s verdict; otherwise, leave of court to file a motion for new trial
      must be sought and granted. To obtain leave to file an untimely motion
      for a new trial, the defendant must show “by clear and convincing
      proof” that he or she was “unavoidably prevented” from discovering the
      evidence and filing a timely motion for a new trial within the 120-day
      period. Crim.R. 33(B). Thus, a motion for leave must demonstrate two
      things: (1) that the defendant has obtained what constitutes newly
      discovered evidence; and (2) that the defendant was “unavoidably
      prevented” from timely discovering that evidence.
      “Clear and convincing” evidence is that “measure or degree of proof”
      that “produce[s] 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. “It is intermediate, being more than a mere preponderance,
      but not to the extent of such certainty as is required beyond a
      reasonable doubt as in criminal cases. It does not mean clear and
      unequivocal.” (Emphasis deleted.) Id. at 477.

State v. Smith, 2024-Ohio-1360, ¶ 46-48 (8th Dist.).

              A trial court evaluating a motion for leave under Crim.R. 33(B) “may

not consider the merits of the proposed motion for a new trial unless and until it

grants the motion for leave.” Id. at ¶ 49, citing State v. Hatton, 2022-Ohio-3991,

¶ 30, 33, and Bethel at ¶ 41. Accordingly, the sole question before the trial court

when considering a motion for leave based on newly discovered evidence is whether

the defendant has established, by clear and convincing proof, “that he or she was

unavoidably prevented from discovering the evidence on which he or she seeks to

base the motion for a new trial within the time frame provided, e.g., within 120 days

of the jury’s verdict.” (Emphasis added.) Smith at ¶ 49, citing Hatton at ¶ 30 and

State v. Hale, 2023-Ohio-3894, ¶ 20 (8th Dist.). “In order 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.’” State v. Hubbard, 2020-Ohio-2726, ¶ 29 (8th Dist.),

quoting State v. Cowan, 2020-Ohio-666, ¶ 10 (8th Dist.), citing State v. Bridges,

2016-Ohio-7298, ¶ 20 (8th Dist.). See also State v. McFarland, 2022-Ohio-4638,

¶ 17 (8th Dist.); Smith at ¶ 49.
              “‘The “unavoidably prevented” requirement in Crim.R. 33(B) mirrors

the “unavoidably prevented” requirement in R.C. 2953.23(A)(1).’” Bethel at ¶ 59,

quoting State v. Barnes, 2018-Ohio-1585, ¶ 28 (5th Dist.). See also Johnson at ¶ 16,

fn. 3.   We therefore must apply the “unavoidably prevented” analysis in the

Crim.R. 33(B) context as in the postconviction-relief context. State v. Allen, 2024-

Ohio-970, ¶ 33 (8th Dist.), citing Bethel at ¶ 59.

              “We review both a trial court’s decision on a motion for leave to file an

untimely motion for a new trial and a trial court’s decision whether to hold an

evidentiary hearing on a motion for leave for abuse of discretion.” Smith at ¶ 52. A

trial court “abuses its discretion when it exercises its judgment in an unwarranted

way with respect to a matter over which it has discretionary authority.” Hunter v.

Troutman, 2025-Ohio-366, ¶ 64 (8th Dist.), citing Johnson v. Abdullah, 2021-Ohio-

3304, ¶ 35. “The term abuse of discretion implies that the court’s attitude is

unreasonable, arbitrary, or unconscionable.” Hunter at ¶ 64, citing Blakemore v.

Blakemore, 5 Ohio St.3d 217 (1983). See also State v. McAlpin, 2026-Ohio-148,

¶ 14. “However, ‘courts lack the discretion to make errors of law, particularly when

the trial court’s decision goes against the plain language of a statute or rule.’”

McAlpin at ¶ 14, quoting Johnson at ¶ 39. Accordingly, “[w]e review questions of

law de novo.” McAlpin at ¶ 14, citing Johnson at ¶ 38.
IV. Analysis

  A. First Assignment of Error – Postconviction Relief

               In his first assignment of error, Jones argues that the trial court

abused its discretion in denying his untimely, successive petition for postconviction

relief because he established that his rights were violated, that he was unavoidably

prevented from timely discovery of the evidence, and that no reasonable factfinder

would have found him guilty. As noted above, the only items attached to his

Successive PCR and Motion for Leave that he claims he was unavoidably prevented

from timely discovering are the prosecutor’s interoffice memorandum and the

potential testimony of Larissa Taylor. We address each item in turn.

     1. The Interoffice Memorandum

        a. The “Unavoidably Prevented” Standard and Jones’s Brady
           Argument

              The United States Supreme Court, in Brady v. Maryland, 373 U.S. 83

(1963), “recognized that the prosecution has an affirmative duty to disclose evidence

that is favorable to the accused and material to the accused’s guilt or punishment.”

State v. Dye, 2024-Ohio-3191, ¶ 23 (8th Dist.), citing Brady at 87. This “duty

encompasses impeachment evidence as well as exculpatory evidence,” and “it

encompasses evidence ‘known only to police investigators and not to the

prosecutor.’” Strickler v. Greene, 527 U.S. 263, 280-281, 286 (1999), quoting Kyles

v. Whitley, 514 U.S. 419, 438 (1995). Furthermore, “[t]he Brady rule applies

regardless of whether evidence is suppressed by the State willfully or inadvertently.”

Dye at ¶ 23, citing Strickler at 282.
              “In Banks v. Dretke, 540 U.S. 668, 695 (2004), the Supreme Court of

the United States explained that criminal defendants have no duty to ‘scavenge for

hints of undisclosed Brady material.’” Bethel, 2022-Ohio-783, at ¶ 24. Accordingly,

“[s]ince the decision in Banks, multiple federal circuit courts and other state

supreme courts have repudiated the imposition of any due-diligence requirement

on defendants in Brady cases.” Bethel at ¶ 24. In other words, as the Ohio Supreme

Court explained in Bethel, because “a defendant is entitled to rely on the

prosecution’s duty to produce evidence that is favorable to the defense,” a defendant

“seeking to assert a Brady claim . . . is not required to show that he could not have

discovered suppressed evidence by exercising reasonable diligence.” Bethel at ¶ 25.

Therefore, “when a defendant seeks to assert a Brady claim in an untimely or

successive petition for postconviction relief, the defendant satisfies the ‘unavoidably

prevented’ requirement contained in R.C. 2953.23(A)(1)(a) by establishing that the

prosecution suppressed the evidence on which the defendant relies.” Bethel at ¶ 25.

              In Johnson, 2024-Ohio-134, the Ohio Supreme Court examined its

ruling in Bethel and “reconciled the burden of proof prescribed by

R.C. 2953.23(A)(1)(a) with the dictates of Brady, holding that the petitioner’s

burden of proof is modified but not eliminated by such claims.” State v. Kenney,

2025-Ohio-4841, ¶ 29 (8th Dist.), citing Johnson at ¶ 17. As the Ohio Supreme

Court wrote in Johnson:

      Properly understood, Bethel reconciles the burden of proof in R.C.
      2953.23(A)(1) with the dictates of Brady. What Bethel does not do is
      eliminate a petitioner’s burden of proof. Nor could this court have
        done so. The General Assembly chose to place the burden of proof
        squarely on the shoulders of postconviction petitioners such as
        Johnson by enacting the requirement that “the petitioner show[] that
        the petitioner was unavoidably prevented from discovery of the facts
        upon which the petitioner must rely,” R.C. 2953.23(A)(1)(a).

        Holding as Johnson would have us do — that the petitioner does not
        bear that burden — would transmogrify the statute. Thus, we reaffirm
        today that a petitioner who files an untimely or successive petition for
        postconviction relief under R.C. 2953.21 bears the burden of showing
        that he was unavoidably prevented from discovering the evidence on
        which the petition relies. A petitioner may make the required showing
        either by establishing a violation under Brady, 373 U.S. 83, 83 S.Ct.
        1194, 10 L.Ed.2d 215, or by demonstrating that he was previously
        unaware of the evidence on which the petition relies and could not have
        discovered it by exercising reasonable diligence.

(Emphasis added.) Johnson at ¶ 17-18.

               In short, “because defendants are entitled to rely on the prosecution’s

affirmative duty to produce evidence favorable to the defense, defendants seeking to

assert Brady claims are not required to show that they could not have discovered

suppressed evidence by exercising reasonable diligence.” Kenney at ¶ 29, citing

Bethel at ¶ 25. Instead, a defendant may “satisfy the ‘unavoidably prevented;

requirement in the context of an alleged Brady violation by establishing that the

prosecution suppressed the evidence on which they now rely.” Id., citing Bethel at

¶ 25.

               We acknowledge that Jones was not required to search for suppressed

evidence, that “[t]he duty to disclose applies to impeachment evidence and

encompasses evidence known to the police but not to prosecutors[,]” and that the

duty to disclose “also applies whether the evidence was suppressed by the State

willfully or inadvertently.” State v. Anderson, 2025-Ohio-1254, ¶ 11 (8th Dist.),
citing Dye, 2024-Ohio-3191, at ¶ 23 (8th Dist.), Bethel, 2022-Ohio-783, and

Strickler, 527 U.S. at 280-281, 286 (1999). Jones, however, was still required “to

establish that the State suppressed the evidence on which he relies, as is necessary

for a Brady claim.” Anderson at ¶ 16.

               In Anderson, the petitioner argued “that he had not received police

reports that included statements from the State’s key witnesses that allegedly

contradicted their trial testimony.” Anderson at ¶ 10. Similar to Jones, Anderson

also argued in the alternative that “if his attorney did have the reports, he was

ineffective for failing to use them to impeach those witnesses at trial.” Id. at ¶ 10.

This aspect of Anderson is relevant to Jones’s attempt to cover all bases here, where

he includes a claim of ineffective assistance of counsel in apparent hopes of an end-

run around any affidavit requirement. In short, he argues that he wins whether his

trial attorney had the interoffice memorandum or not because it was either

suppressed in violation of Brady or his trial counsel had it and was ineffective in not

using it. This court rejected this species of argument in Anderson, expressly noting

the ineffective-assistance argument but rejecting the petition based on the same flaw

that is fatal to Jones’s petition, i.e., the lack of affidavits establishing that he never

received the items relied upon:

      Anderson vacillates between claiming that he never received
      exculpatory evidence contained in police reports and claiming that if
      his lawyer had those reports, he failed to use them at trial.
      Additionally, Anderson failed to indicate when and how he obtained
      the reports and excluded any affidavits from people with firsthand
      knowledge, including himself, to support his claim that he never
      received the reports. Unsubstantiated and self-serving allegations are
      insufficient to establish entitlement to an evidentiary hearing. State v.
      Walter, 2020-Ohio-6741, ¶ 9 (8th Dist.). Based on the foregoing, we
      cannot find that Anderson established that the State suppressed the
      evidence on which Anderson relies.

(Emphasis added.) Anderson at ¶ 13. This court concluded that Anderson, having

failed to establish under Brady that the State suppressed the evidence on which he

relied, “failed to meet the requirement under R.C. 2953.23(A)(1)(a) necessary to

obtain the jurisdiction of the court.” Id. at ¶ 16. Accordingly, this court declined to

“consider the requirements of R.C. 2953.23(A)(1)(b) because both sections (a) and

(b) are necessary.” Id. at ¶ 16.

               Similarly, in Dye, the petitioner failed to establish that his trial counsel

was unaware of the contents of certain police reports and witness statements. This

court wrote that “[b]ecause appellant may not have been privy to the exchange of

discovery, his claim depends on his trial counsel’s knowledge.” (Emphasis added.)

Id. at ¶ 26. This court continued:

      While appellant alleges that his counsel “would have discussed it with
      [him]” or would have provided him with it, appellant failed to
      substantiate such a claim beyond his self-serving speculation. He
      merely offers his unverified belief that his counsel was unaware of the
      existence or the contents of the police report before trial because he
      “thinks” they would have talked to him about an additional witness
      statement and he is “certain” that they would have shown the police
      report to him or discussed it with him.

Id. at ¶ 26.    This court then reiterated that “‘[u]nsubstantiated, self-serving

allegations are not sufficient to demonstrate entitlement to an evidentiary hearing.’”

Id. at ¶ 27, quoting State v. Walter, 2020-Ohio-6741, ¶ 9 (8th Dist.). It contrasted

Dye’s petition to those offered in other cases, including Bethel, where the petitioner
had offered affidavits of trial counsel indicating they did not know about certain

evidence prior to trial, and Hale, 2023-Ohio-3894 (8th Dist.), in which this court

wrote that “[m]ost significantly, the motion for leave [was] supported by the

affidavits of Hale’s former trial counsel . . . and former postconviction counsel[.]”

Id. at ¶ 37.

               Likewise, in Kennedy, 2024-Ohio-66 (8th Dist.), this court found “no

evidentiary basis to conclude that the police reports underlying the Brady claim were

willfully or inadvertently suppressed by the prosecution[.]”              Id. at ¶ 39.

Postconviction counsel had averred that the evidence was obtained via a 2021

public-records request, but there was “no evidence to suggest that the police reports

were not disclosed by the state during the discovery process utilized in 2003.” Id. at

¶ 39. In Kennedy, unlike here, trial counsel did submit an affidavit. This court still

found it deficient: “[Trial counsel] did not aver, for example, that the defense did not

know about the police reports before Kennedy’s trial in 2003 or that, if disclosed,

the reports would have been incorporated into his defense at trial.” Kennedy at ¶ 39.

This court therefore concluded that “the documentary and inferential evidence

incorporated into Kennedy’s successive petition for postconviction relief does not

establish that the disputed evidence was suppressed.” Id. at ¶ 40, citing Bethel,

2022-Ohio-783. Thus, “Kennedy failed to demonstrate that he was unavoidably

prevented from discovering the facts upon which his Brady claim relies.” Id.

               State v. Whatley, 2024-Ohio-4909 (8th Dist.), also involved a public-

records request. There, “Whatley’s cousin made a public records request to obtain
the investigative file for Whatley’s case.” Whatley later filed both an untimely

petition for postconviction relief and a motion for leave to file a motion for new trial

claiming he was not aware of evidence contained in a certain police report. Id. at

¶ 3.   This court characterized Whatley’s arguments as a combination of “his

unsupported belief that the State suppressed evidence within the police report he

recently obtained, and because the evidence was ‘suppressed,’ he was not required

to demonstrate that he was unavoidably prevented from timely obtaining the

information.” Id. at ¶ 5.

               This court, consistent with Dye, 2024-Ohio-3191 (8th Dist.), held that

postconviction-relief claims based on alleged Brady violations generally “depend on

the knowledge of trial counsel or the State’s concession.” Id. at ¶ 14.3 This court

continued:

       Instead of offering evidence that the information was suppressed or
       withheld, Whatley, similar to the offender in Dye, merely “offers his
       unverified belief that his counsel was unaware of the existence or the
       contents of the police report before trial.” [Dye] at ¶ 28.

       Especially for the purposes of belated petitions for postconviction
       relief, “‘[u]nsubstantiated, self-serving allegations are not sufficient to
       demonstrate entitlement to an evidentiary hearing.’” Id. at ¶ 27,
       quoting State v. Walter, 2020-Ohio-6741, ¶ 9 (8th Dist.), and State v.
       Hill, 2019-Ohio-365, ¶ 70 (1st Dist.). A petition for postconviction
       relief must present some evidence demonstrating the unavoidably
       prevented prong of the analysis, including whether the State
       suppressed the evidence at issue. [Emphasis added.] In this case,

       3 In Dye, this court noted that the lead trial attorney might be deceased and that

“that appellant’s other trial attorney was possibly disbarred and/or is unreachable out of
state.” Dye at ¶ 26, fn. 2. “[H]owever, this information was only offered during counsel’s
arguments. No evidence reflecting either attorney’s whereabouts was offered with
appellant’s petition.” Id. In the present case, appellant offered no affidavits whatsoever,
even his own or of postconviction counsel, with respect to the availability of trial counsel.
       Whatley presumes that the State withheld the evidence contained in
       the police report because his trial counsel failed to discuss that
       information at trial. According to Whatley, it would be “illogical to
       believe that defense counsel would not have used” the evidence at trial
       if he in fact had access to it.

       Whatley’s argument is purely speculative. There is no evidentiary basis
       to conclude that the police reports and any additional evidence in those
       reports were suppressed by the State in this particular case. . . . Whatley
       has not identified any evidence other than his self-serving, speculative
       assumptions that the State withheld any evidence at the time of his
       trial.

       ...

       The trial court lacked jurisdiction to consider the petition for
       postconviction relief based on Whatley’s failure to present evidence
       that the State suppressed any information contained in the police
       reports Whatley belatedly obtained.

Id. at ¶ 14-16, 18.

               In Kenney, 2025-Ohio-4841 (8th Dist.), yet another case involving a

public-records request, the petitioner claimed he had been deprived of certain police

reports with information favorable to his defense. Jones’s arguments here with

respect to the interoffice memorandum are somewhat analogous to Kenney’s. Just

as Kenney claimed that a testifying detective concealed exculpatory investigatory

information by omitting it from his testimony, Jones claims that the prosecutor’s

memorandum suggests the State concealed exculpatory information suggesting that

the occupants of the white car fired upon Jones and his codefendants.                The

information in Kenney, however, was far more compelling than the interoffice

memorandum in the present case, which was prepared in connection with a separate

criminal case by a prosecutor who did not even appear for the State at Jones’s trial.
In the present case, the interoffice memorandum contains merely an offhand

reference to a possible theory of the case, with no reference to police reports, witness

statements, physical evidence, or indeed to any evidence whatsoever. The police

report at issue in Kenney, by contrast, “included witness statements that someone

other than Kenney was responsible for [the victim’s] murder.” (Emphasis added.)

Kenney at ¶ 30. Kenney claimed “that a detective knowingly concealed information

by omitting it from his testimony about [the victim’s] murder investigation.” Id. A

private investigator submitted an affidavit in which she “ambiguously aver[red] that

the information one witness shared with police ‘was not revealed during [Kenney’s]

trial,’ and Kenney maintain[ed] that these ‘previously undisclosed facts’ only

became available to him in late 2021 or early 2022, following a public-records

request.” (Emphasis in original.) Id.

              The Kenney Court, however, rejected these arguments. It explained

— consistent with this court’s decisions in Dye, 2024-Ohio-3191 (8th Dist.) and

Whatley, 2024-Ohio-4909 (8th Dist.)— that Brady suppression claims generally

depend on the knowledge of trial counsel or the State’s concession. Id. at ¶ 31. Like

the cases discussed above, it rejected the notion that Kenney’s unverified beliefs and

unsubstantiated, self-serving allegations were sufficient to establish that the State

had suppressed the evidence at issue, particularly for the purpose of establishing the

“unavoidably prevented” prong of the analysis for untimely petitions for

postconviction relief. Id. at ¶ 31. It continued:
      Kenney provided no affidavits or other evidence detailing how and
      when he learned about the existence of the police reports, signed
      statements, and information contained therein; establishing that the
      police records were, in fact, suppressed; and explaining why he, his
      attorneys, or his private investigator could not have discovered this
      “new evidence material to his defense” sooner.

Kenney at ¶ 32.

              In the present case, Jones failed to present an affidavit from anyone

with firsthand knowledge, including trial counsel, appellate counsel, or even from

himself, indicating when he received the memorandum, how he received the

memorandum, or otherwise supporting his claim that it was suppressed. See

Anderson, 2025-Ohio-1254 at ¶ 13 (8th Dist.). To the extent he claims that the

memorandum suggests the existence of other evidence that must have been

suppressed, this is likewise insufficient under the line of cases discussed above. The

memorandum does not refer to witnesses, police reports, forensic evidence, or

indeed evidence of any sort. Jones “has not identified any evidence other than his

self-serving, speculative assumptions that the State withheld” evidence. Whatley at

¶ 16. As the cases above make clear, this is fatal to his claim, because unverified

beliefs and unsubstantiated, self-serving allegations “are insufficient to demonstrate

that the State suppressed the evidence at issue, especially for the purposes of

establishing the unavoidably prevented prong of the analysis for belated petitions

for postconviction relief.” Kenney at ¶ 31, citing Whatley at ¶ 14 and Dye at ¶ 26.

       b. Work Product

              We have already concluded that Jones failed to provide any affidavits

from individuals with firsthand knowledge to demonstrate when and how he
received the memorandum, which would be necessary to support the claim that he

did not possess it either in advance of trial or within the time period for filing a

timely petition for postconviction relief. For purposes of thoroughness, however, we

address the memorandum’s lack of materiality to Jones’s Brady claim. In short,

even if Jones had established that he received the memorandum only yesterday, this

would not have established a Brady violation.

              Jones is correct on one point: It does not matter, at this juncture,

whether he obtained the interoffice memorandum by dubious means. What does

matter, however, is the lack of any suggestion of a Brady violation at all given the

nature of the memorandum — work product not subject to disclosure.

              We first address whether the State was required, at any point, to

produce the assistant prosecutor’s interoffice memorandum. Jones has cited no

cases suggesting the prosecutor was obligated to do so. At the time of Jones’s trial,

Crim.R. 16(B)(2) provided, with exceptions not applicable here, that “this rule does

not authorize the discovery or inspection of reports, memoranda, or other internal

documents made by the prosecuting attorney or his agents in connection with the

investigation or prosecution of the case.”        (Emphasis added.)       The reason is

straightforward: In 2001, as now under the even more explicit Crim.R. 16(J)(1), a

prosecutor’s memorandum is work product.4




      4 Crim.R. 16(J)(1), effective July 1, 2010, now expressly identifies “memoranda . . .

or other internal documents made by the prosecuting attorney” as “subject to the work
product protection.”
               In the Fourth District case of State v. Henry, 37 Ohio App.3d 3 (6th

Dist. 1987), the State refused to turn over a prosecutor’s notes pertaining to a

witness. In response to Henry’s request, “[t]he prosecution responded that no

statements existed and that the only material available was the prosecutor’s notes

which constituted work product.” The Fourth District agreed, holding that its

“review of the documents discloses that they are in fact the work product of the

prosecutor. The documents consist only of notes taken by the prosecutor, which

were not reviewed, adopted or signed by the witness.” Id. at 8. See also State v.

Scoggins, 2017-Ohio-8989, ¶ 39 (4th Dist.) (prosecutor’s notes made during witness

preparation that were not prepared, adopted, or signed by witness were not a written

statement, but rather “clearly work product” protected from disclosure).

               The Seventh District relied upon both Scoggins and Henry in State v.

Thomas, 2018-Ohio-3768 (7th Dist.), where it held that a prosecutor’s notes were

work product and that there was no duty to produce them:

       [A] prosecutor’s notes of his discussions with witnesses are protected
      under Crim.R. 16 as work product. Scoggins, supra, at ¶ 38; State v.
      Henry, 37 Ohio App.3d 3, 523 N.E.2d 877 (6th Dist.1987), paragraph
      three of the syllabus. These holdings underscore that the state does not
      owe a duty to record or make a written summary of oral statements
      made by witnesses, but merely to provide recorded or written
      statements if these were otherwise recorded or written in the course of
      the investigation and do not amount to attorney work product.

Id. at ¶ 13.   See also State v. Canankamp, 2023-Ohio-43, ¶ 76 (3d Dist.) (a

prosecutor’s notes made during witness preparation are work product protected

from disclosure); State v. Inman, 2013-Ohio-3351, ¶ 26 (4th Dist.) (prosecutor

notes of witness interviews are work product).
              The memorandum in the present case is even further removed from

discoverability than the writings in Scoggins, Henry, Thomas, Canankamp, and

Inman, which consisted of notes of communications with witnesses.                    The

memorandum here does not refer to witnesses or forensic evidence. It is one

assistant prosecutor’s mental impression regarding an entirely different case than

the subject of the memorandum. The State had no duty to turn over the interoffice

memorandum. Jones cannot establish a Brady violation.

       c. The Additional R.C. 2953.23(A)(1)(b) Hurdle

              Even if Jones could establish that he was unavoidably prevented from

obtaining the assistant prosecutor’s memorandum by first establishing when he

came into possession of the memorandum and that the State had unlawfully

suppressed it under Brady, “his postconviction petition faces an additional

jurisdictional hurdle[.]” Bethel, 2022-Ohio-783. Specifically:

      [U]nder R.C. 2953.23(A)(1)(b), he must show by clear and convincing
      evidence that no reasonable fact-finder would have found him guilty
      . . . but for constitutional error at trial. This question goes to the heart
      of Brady’s third prong, which requires [a petitioner] to show that
      “‘there is a reasonable probability that, had the evidence been disclosed
      to the defense, the result of the proceeding would have been different.’”
      Kyles [Kyles v. Whitley, 514 U.S. 419, 433 (1995)], quoting [United
      States v. Bagley, 473 U.S. 667, 682 (1985).]

       The Brady standard does not require Bethel to show that disclosure of
      the . . . information would have resulted in his acquittal. See Kyles at
      434. Nor does it require him to show that “after discounting the
      inculpatory evidence in light of the undisclosed evidence, there would
      not have been [sufficient evidence] left to convict,” id. at 434-435.
      Rather, [a petitioner] must prove that “in the context of the entire
      record,” [United States v. Agurs, 427 U.S. 97, 112 (1976)], suppression
      of the . . . information “‘undermines confidence in the outcome of the
      trial,’” Kyles at 434, quoting Bagley at 678.
Bethel at ¶ 31-32. Thus, “[t]he question is whether we can have confidence in the

jury’s verdict even assuming” suppression. Id. at ¶ 34. “To answer that question, we

must examine how [Jones] might have benefited from that information at trial.” Id.

              In other words, even if we were to determine that the prosecutor’s

interoffice memorandum was suppressed and that it found its way to Jones outside

the statutory period for filing a timely petition, we would also need to conclude that

this item was material.    “[T]he materiality of suppressed evidence must be viewed

‘in the context of the entire record.’” Bethel at ¶ 34, quoting United States v. Agurs,

427 U.S. 97, 112 (1976).

              It is hard to discern how Jones could have benefited from possession

of the memorandum at the time of trial or otherwise.            The memorandum’s

connection to this case is exceedingly tenuous. On its face, it was not prepared in

direct relation to Jones’s case. The author even identified the incorrect “Hill”

brother being chased by the white vehicle, stating that “friends of one of the victims

in Freeman’s other capital case shot at a Thurlin Hill.” (Emphasis added.) At trial,

however, Hurlon Hill testified that the occupants of the white car chased him after

he dropped his bike. He further testified that he resided with his mother and his

brothers, identifying one of his brothers as “Thurlon Hill.” (Tr. 1059.) There was no

suggestion, however, that Thurlon Hill was at the scene. In other words, the author

of the memorandum not only referenced the wrong Hill brother but also spelled his
name incorrectly.5 At the very least, this misidentification of a key witness informs

us that the memorandum’s author lacked a thorough and accurate understanding of

the facts underlying Jones’s case.

              Moreover, even if we ignored this indicator of unfamiliarity and

assumed the memorandum’s author somehow knew Jones’s case backwards and

forwards, we cannot accept Jones’s contention that the prosecutor’s office operates

as a hive mind where every assistant prosecuting attorney shares identical opinions

about every other assistant prosecutor’s cases. Indeed, while the memorandum was

directed to the county prosecutor with copies to seven other individuals, none of the

recipients appeared as trial counsel in Jones’s case.

              Even more importantly, Jones does not indicate how the memo could

possibly be admissible into evidence or otherwise used at trial, i.e., who he would

call as a witness, what questions would be permissible, or how the memo could be

used to impeach any witness. It is unlikely the court would have allowed the

prosecutor himself to testify in the absence of personal knowledge of the underlying

incident. “The document to which [defense counsel] refers appears, at best, to be

the prosecutor’s work product in the form of handwritten notes on matters that

might be included in a bill of particulars. . . . [T]he subject matter of the document

would be neither evidence nor direct testimony.” State v. Cullers, 2001-Ohio-1759,

*18 (2d Dist. 2001). Evid.R. 602 states that “[a] witness may not testify to a matter



      5 Hurlon was asked at trial to spell the name of his brother Thurlon. He responded:

“T-H-U-R-L-O-N.” (Tr. 1059.)
unless evidence is introduced sufficient to support a finding that the witness has

personal knowledge of the matter.” Jones had made no suggestion that the assistant

prosecutor who authored the memo was at the scene or otherwise had any personal

knowledge regarding the shooting. As a result, even if Jones had been in possession

of the memorandum and had attempted to call the assistant prosecutor as a witness,

the admissibility of any testimony would be dubious. Even in the absence of a

privilege, “the witness will only be allowed to testify if he has personal knowledge of

the matter.” Toledo v. Moore, 2003-Ohio-2362, ¶ 21 (6th Dist.). In Moore, “the

prosecutor stated he was not at the scene, and therefore, lacked the requisite

personal knowledge in order to testify.” Id.

              Also, the memorandum itself could not have been admitted for the

truth of the matter asserted — that Jones and his codefendants “returned fire” —

because even if defense counsel laid a foundation for authenticity, it is hearsay,

double hearsay, or even further removed by additional layers of hearsay. Jones has

not argued that any exceptions would apply, and it is unlikely any would. In Bethel,

2022-Ohio-783, the Ohio Supreme Court addressed, inter alia, an investigation

report referred to as “Summary 86” that purportedly implicated another individual,

Donald Langbein, in the double murder for which Bethel had been convicted. Id. at

¶ 14. The trial court “characterized Summary 86 as a ‘cryptic double hearsay

statement’ that Bethel could not have used directly at trial under the Rules of

Evidence.” Id. at ¶ 33. The Ohio Supreme Court agreed, stating that Summary 86

could not have been used as either direct evidence or for impeachment:
      Bethel could not have used the Withers information as direct evidence
      that Langbein (and not Bethel) murdered Reynolds and Hawk. The
      statements in Summary 86, which report what Withers had said to
      investigators, are double hearsay. And although Withers affirmed his
      statements in an affidavit and could have testified at trial, the
      statements are still hearsay because Withers merely repeated what
      Chavis had allegedly told him. Bethel argues that the Withers
      information would have undermined the state’s case against him, but
      he does not identify any hearsay exception that would have allowed
      Chavis’s purported statements to Withers to be introduced for the truth
      of the matter asserted. See Evid.R. 801, 803, 804. And Summary 86
      could not have been used to impeach Langbein, because it does not
      involve a prior statement made by Langbein.

Bethel at ¶ 35.

              In summary, the interoffice memorandum is work product. There was

no duty to disclose it. The prosecutor’s office was not required to produce the

interoffice memorandum, and the memorandum itself is not evidence. Despite

Jones’s unsupported declarations to the contrary, the memorandum does not reflect

the position of the prosecutor’s office with respect to the merits of his self-defense

theory. It reflects that one assistant prosecutor authoring a memorandum on a

different case somehow formed an impression that Jones and his codefendants

“returned fire” on the occupants of the white vehicle. As discussed directly above, if

the memorandum had been disclosed, Jones has pointed to no authority suggesting

he could have used it at trial in any fashion.

              In connection with the “unavoidably prevented” discussion above, we

reference Jones’s argument that if he had enjoyed access to the memorandum in a

timely fashion he could have asked for additional discovery regarding what evidence

led this particular assistant prosecutor to memorialize his offhand impressions.
This species of bootstrapping, however, is foreclosed by this court’s repeated

rejection of self-serving and speculative assertions that something, somehow, must

have been suppressed. Here, Jones is relying on non-Brady material — work

product crafted in connection with an unrelated case, no less — to suggest that the

State must have suppressed self-defense evidence. But Jones fails to state what that

evidence might be, even by category, or to provide any support for his claim that the

State suppressed any actual evidence. The interoffice memorandum contains no

reference to what the assistant prosecutor relied upon when he wrote the sentence

that Jones finds so enticing. Jones’s argument that it must be something he did not

receive in discovery is purely speculative. The State’s pretrial disclosures included,

inter alia, witness statements and police reports. Jones has not shown that evidence

such as witness statements, police reports, or forensic evidence was actually or even

arguably suppressed.

               Each defendant gave a statement that shots were fired from the white

vehicle, and the self-defense theory offered by Jones and his codefendants was so

thoroughly explored at trial that the jury sent two questions to the trial court with

respect to self-defense instructions. (Tr. 1573 and 1586.)6 Moreover, a police report

turned over in discovery indicated that testifying witness L.C., who was W.C.’s sister,

had initially believed that shots had been fired from the white vehicle. Jones



       6 The jury’s first question asked the court to re-read certain definitions, including

self-defense. (Tr. 1573.) The trial court instructed the jury again with respect to self-
defense. (Tr. 1578-1584.) The second question likewise asked the trial court to re-read the
self-defense instruction specifically, and the trial court did so. (Tr. 1586 and 1595-1605.)
correctly states that she changed her story at trial. In its direct examination, the

State preemptively questioned L.C. concerning her initial report to police that she

“thought [shots were] coming from the car that night.” (Tr. 728.) L.C. stated that

she did not see anyone in the vehicle with a gun or any flashes from the vehicle. (Tr.

728.) This, however, does not suggest that evidence was suppressed. It suggests the

opposite, i.e., that the State turned over a potentially exculpatory police report and

worked to ensure that the relevant witness clarified her account at trial.

              The assistant prosecutor’s memo was circulated (again, to eight

individuals not appearing for the State in Jones’s case) a week before trial began.

Assuming the assistant prosecutor who authored the memo even knew of the police

report referencing L.C.’s statements, perhaps he thought that L.C. would testify

consistently with the report. Perhaps the prosecutor’s terse reference to Jones’s case

was based on assumptions that one or more witnesses might corroborate the

defendants’ statements that shots came from the car, which would hardly be a

stretch based on what appears to be rival gang activity. Then again, perhaps the

prosecutor’s reference to returning fire was based on nothing more than water

cooler conversation with other assistant prosecutors handling multiple matters and

floating various case theories. If all of this sounds like rampant speculation based

on unverified assumptions, that is precisely the point. The memo not only is not

evidence, it does not even remotely hint that any underlying evidence was

suppressed or that the jury’s verdict would have been different.         Neither the
existence nor content of the purportedly undisclosed memorandum undermines our

confidence in the outcome of the trial.

               Finally, even though we have addressed the obstacles to using the

memorandum in any fashion at trial, we briefly discuss Jones’s argument that if his

trial counsel possessed the interoffice memorandum at the time of trial, he was

unconstitutionally ineffective in failing to utilize it. This court has described a

petitioner’s burden in this context as follows:

      In a petition for postconviction relief based on a claim of ineffective
      assistance of counsel, the petitioner bears the initial burden to submit
      evidentiary documents containing sufficient operative facts to
      demonstrate (1) deficient performance by counsel, i.e., performance
      falling below an objective standard of reasonable representation, and
      (2) that counsel’s deficient performance prejudiced him, i.e., a
      reasonable probability that but for counsel’s errors, the result of the
      proceeding would have been different.

Kennedy, 2024-Ohio-66, at ¶ 46 (8th Dist.).

              As explained above, this court recently rejected a Brady-adjacent

ineffective-assistance argument in Anderson, 2025-Ohio-1254, at ¶ 10-13 (8th

Dist.), based on the lack of affidavits from individuals with firsthand knowledge of

what was or was not in trial counsel’s possession. In addition, if trial counsel did not

have the memorandum because it was suppressed in violation of Brady, then “‘trial

counsel could not have been ineffective for failing to investigate, develop, or present

such evidence.’” Jackson, 2025-Ohio-2363, at ¶ 48 (8th Dist.), quoting State v.

Martin, 2025-Ohio-144, ¶ 51 (11th Dist.). As discussed thoroughly above, Jones

would instead need competent evidence supporting the fact of nondisclosure, or

suppression in violation of Brady, and explaining both when and how the
memorandum later surfaced. He produced no such evidence and has failed to

support his argument that there was a Brady violation.

               If trial counsel possessed the memorandum in advance of trial,

Jones’s claim is reduced to an ordinary ineffective-assistance claim based on

evidence already available to the trial counsel. In that circumstance, he would fail

to meet the threshold requirement for his untimely and successive petition because

he was not “unavoidably prevented from discovering the facts that were necessary

to establish an ineffective assistance claim.” State v. Kane, 2017-Ohio-7838, ¶ 15

(10th Dist.). In other words, “‘if the evidence was reasonably discoverable, then, by

definition, the “unavoidably prevented” standard is not met.’” Jackson at ¶ 48,

quoting Martin at ¶ 50. Jones’s ineffective claim would then be reduced to nothing

more than a new legal theory as opposed to a “new evidence” theory.

“‘R.C. 2953.23(A) contemplates the . . . discovery of new historical facts of the case,

not new legal theories.’” Kane at ¶ 15, quoting State v. Melhado, 2006-Ohio-641,

¶ 19 (10th Dist.).

               In short, Jones cannot outflank the “unavoidably prevented”

requirement by arguing in the alternative that if his trial counsel possessed the

memorandum, the attorney was ineffective in not using it. Indeed, if trial counsel

did possess the memorandum, but failed to utilize it, this could have been addressed

in Jones’s first petition for postconviction relief.7 While invocation of the doctrine



      7 We acknowledge that the memorandum, which was neither part of the trial record

nor referred to potential evidence known to Jones or his trial counsel, could not have been
of res judicata is not required to dispose of Jones’s arguments, we note that this

species of ineffective-assistance claim would be barred in this context. See Kennedy

at ¶ 47 (Petitioner “is not entitled to a second opportunity to litigate his ineffective

assistance of counsel claims in a successive petition merely because [he] failed to

support his original petition with documentary evidence.”).

               Jones also raises additional ineffective-assistance claims that do not

implicate Brady in any fashion and could clearly have been raised on direct appeal

or in a timely petition. He claims, for example, that there “were multiple statements

made by witnesses . . . indicating that the males in the white vehicle had opened fire

on [Jones and his codefendants],” and that trial counsel’s “failure to use those

statements and call those witnesses to testify at trial is not a strategic decision

considering that evidence went directly to the heart of the defense that counsel

sought to argue.” (Appellant’s brief at p. 21-22.) By noting that the statements were

available and that trial counsel could have called these individuals as witnesses, he

essentially concedes he was not “unavoidably prevented” from discovering this

evidence and that an ineffective-assistance claim based on such evidence could have

been raised, if not on direct appeal, then in his first petition. Indeed, this court

observed in Jones II that even though the new witness affidavit “was not sworn until

after [his] trial,” Jones “[f]ail[ed] to allege . . . that the information provided in the

witness’s affidavit was not available at the time of his trial or his direct appeal[]” and



used to support an ineffective-assistance claim on direct appeal. See, e.g., Jones II at ¶ 6;
State v. Jackson, 2017-Ohio-2651, ¶ 83 (8th Dist.).
did not provide an affidavit stating “that he himself did not discover this evidence

until after the trial.” Id. at ¶ 7-8. Instead, much like here, he claimed an available

witness could have been called and that his counsel was ineffective in not doing so.

Id. at ¶ 7-8. In light of that, this court concluded that Jones had failed “to present

new evidence dehors the record concerning his counsel’s actions” and that “[t]his

issue could have been raised on direct appeal and is res judicata.” Id. at ¶ 8.

              We find no merit to Jones’s arguments concerning the interoffice

memorandum or ineffective assistance of counsel.

     2. Larissa Taylor’s Affidavit

        a. The “Unavoidably Prevented” Standard

              Jones’s arguments regarding the affidavit of Larissa Taylor are more

straightforward because they present no Brady issues. Once again, however, the

lack of any affidavit from trial counsel, postconviction counsel, or even Jones

himself that they were unavoidably prevented from discovering Taylor’s potential

testimony either prior to trial or within the deadline for filing a timely petition for

postconviction relief precluded the trial court from exercising jurisdiction. In short,

Jones failed to establish that he was unavoidably prevented from discovery of the

facts upon which he relies.

              Taylor’s affidavit is dated October 23, 2024, more than 23 years after

the shooting. She avers that she was not interviewed by prosecutors and police in

2001 and did not come forward “at the time” because she was a minor and was afraid

to become involved. She also avers that she was first approached by postconviction
counsel in June 2024 based upon a review of trial transcripts where she had been

referred to by a witness who used her nickname, “Ressie.”

              These details, however, “merely reveal[] when the affidavit was

executed or provided, not when the testimony it contains became available.”

Johnson, 2024-Ohio-134, at ¶ 25.       “Without an explanation of how the [new

evidence] was discovered, the information essential to the R.C. 2953.23 inquiry

remains cloaked in darkness.” (Emphasis added.) Id. In Johnson, the Ohio

Supreme Court held that “R.C. 2953.23(A)(1)(a) requires a petitioner to submit

evidence of specific facts beyond the supporting affidavit’s date to explain why the

petitioner was unable to timely obtain an affidavit from the . . . witness.” (Emphasis

added.) Id. at ¶ 27.

              While Taylor’s affidavit goes beyond indicating when it was executed

or provided, it is nevertheless insufficient under Johnson. Taylor explains why she

did not come forward in 2001 and notes that she was “tracked . . . down” and

contacted in June 2024, but the affidavit contains no specific facts to demonstrate

why Jones was unable to obtain her testimony either before trial or within the

deadline for a timely petition for postconviction relief. In other words, it “provides

no information about whether [Jones] had been prevented, unavoidably or

otherwise, from timely discovering” Taylor’s identity and potential testimony.

Johnson at ¶ 29. “While [Jones] argues that he was ‘unavoidably prevented from

discovering this new evidence until the affiant[] came forward,’ there is no evidence

in the record detailing [Jones’s] efforts, if any, to timely obtain the affidavit[] or
establish why those efforts would have been unsuccessful.” (Emphasis added.)

Kenney, 2025-Ohio-4841, at ¶ 26 (8th Dist.).

              Just as with the prosecutor’s interoffice memorandum, there are no

additional affidavits from Jones, his counsel, or from anyone else stating that Jones

and his defense team did not know Taylor’s identity prior to trial or prior to his first

petition for postconviction relief. There were no affidavits specifically establishing

when Jones or his defense team discerned her identity, how she was found, or

otherwise supporting the notion that the defense was unable to locate and interview

Taylor prior to trial or before Jones filed his first petition for postconviction relief.

This lack of evidentiary support to satisfy the “unavoidably prevented” standard

could conclude our inquiry:

      [T]he petitioner bears the burden of proving that he was unavoidably
      prevented from discovering the evidence on which he must rely, before
      the trial court even has subject-matter jurisdiction to consider the
      petition. . . . Therefore, it is the petitioner’s duty to present sufficient
      evidence to carry that burden at the time he files the petition. And there
      is no practical reason why a hearing might be necessary for the
      petitioner to satisfy this burden. If testimony can be elicited at a
      hearing, it can be attested to in an affidavit.

Johnson at ¶ 26. See also Kenney at ¶ 32 (petitioner “provided no affidavits or other

evidence detailing how and when he learned about the existence” of the evidence or

“explaining why he, his attorneys, or his private investigator could not have

discovered this ‘new evidence material to his defense’ sooner”); Anderson, 2025-

Ohio-1254, at ¶ 13 (8th Dist.) (petitioner “failed to indicate when and how he

obtained the reports and excluded any affidavits from people with firsthand

knowledge, including himself”).
              In addition to the absence of supporting affidavits, the record indicates

that Taylor was known to at least two individuals on the State’s witness list, Hurlon

Hill and Lakeisha Staples. Regardless of whether Jones and his counsel actually

knew of Taylor’s identity and potential testimony prior to trial, “[i]t is the duty of the

criminal defendant and his trial counsel to make a serious effort, on their own, to

discover potential, favorable evidence.” State v. Collins, 2020-Ohio-918, ¶ 45 (8th

Dist.); State v. Miller, 2022-Ohio-378, ¶ 14 (8th Dist.). “‘A defendant cannot claim

that evidence was undiscoverable merely because the defendant or his defense

counsel made no effort to obtain the evidence sooner.’” McFarland, 2022-Ohio-

4638, at ¶ 25 (8th Dist.), quoting Hubbard, 2020-Ohio-2726, at ¶ 56 (8th Dist.).

              Even if we assume that the first clear reference to Taylor (by

nickname) occurred during Staples’s trial testimony, this does not change the

analysis. Staples testified that she and Taylor were talking to Hill when the white

vehicle approached. “The date of the trial transcript merely reveals when the trial

testimony was provided, ‘not when the testimony it contains became available.’”

Smith, 2024-Ohio-1360, at ¶ 78 (8th Dist.), quoting Johnson at ¶ 25.

              Staples mentioned Taylor by nickname 11 times during her testimony.

(Tr. 760-810.) Putting aside any unidentified obstacles to learning of Taylor prior

to trial, this fact is relevant to any argument that Jones was unavoidably prevented

from discovering her identity and potential testimony prior to filing his first motion

for postconviction relief. “Evidence is not undiscoverable simply because no one

looked for it.” Smith at ¶ 78. There are no affidavits from anyone establishing what
steps, if any, were taken to track down “Ressie” after Staples mentioned her by

nickname 11 times during her testimony — a path that could have led to Taylor, and

thus a supporting affidavit, prior to Jones’s first petition for postconviction relief.

              Finally, even if Jones could establish that he was unavoidably

prevented from discovering Taylor and her potential testimony, he would still face

the jurisdictional obstacle posed by R.C. 2953.23(A)(1)(b).          We have already

discussed the applicable standard. Here, even if Jones could somehow establish a

constitutional error at trial in relation to Taylor — despite the fact that the Taylor

affidavit does not implicate Brady — its content does not undermine our confidence

in the jury’s verdict. As the State notes, Taylor’s affidavit directly contradicts the

testimony of several witnesses, including Staples and Hill, as well as the statement

that Jones himself gave to police.

              Specifically, multiple witnesses testified that the gunfire did not begin

until after Hill dropped his bike and fled from the occupants of the white vehicle by

running down Kelton, the white vehicle pursued him down Kelton, and the white

vehicle then returned to the corner of Kelton and East 120th Street and ran over

Hill’s dropped bicycle. Hill testified that he heard no shots until he ran down Kelton,

alerted Jones and his codefendants, and then ran to a backyard and crawled over a

fence. Jones himself told police, in a written statement, that the white vehicle chased

Hill down Kelton, that it came back and began firing upon him and his friends while

it was still on Kelton, and that it “kept shooting at [them]” as it “got to East 120 &

Kelton.” (Appellant’s petition exhibit No. 22.)
               Taylor, however, avers that she was talking to Hill and Staples at the

southeast corner of the park (i.e., the corner of East 120th Street and Kelton) and

that “during [that] conversation, [she] saw a white car . . . coming south down East

120th Street[.]” (Taylor affidavit at ¶ 4.) She then avers that “[a]t that time, [she]

heard a series of shots coming from the car, fast in succession.” (Emphasis added.)

(Taylor affidavit at ¶ 4-5.) The white vehicle, she avers, then “passed by.” (Taylor

affidavit at ¶ 7.) In other words, Taylor claims she would have testified that the white

vehicle approached her, Hill, and Staples on East 120th Street, that it immediately

began firing shots while it was still on East 120th Street and she was still conversing

with Hill and Staples, and that it then “passed by.” As discussed above, this is

inconsistent with multiple witness accounts — including the very individuals

standing at the corner with Taylor — and with Jones’s own statement to police

regarding how the shootings occurred. Jones has not demonstrated, by clear and

convincing evidence, that no reasonable factfinder would have found him guilty had

Taylor testified or that her affidavit should otherwise cause us to lose confidence in

the jury’s verdict.

              Because we find no merit to Jones’s arguments concerning either the

prosecutor’s interoffice memorandum or the Taylor affidavit, Jones’s first

assignment of error is overruled.

  B. Third Assignment of Error – Motion for Leave to File Motion for
     New Trial

               In his third assignment of error, Jones argues that the trial court

abused its discretion in denying his motion for leave to file motion for new trial
pursuant to Crim.R. 33. As explained more thoroughly above, “‘[t]he “unavoidably

prevented” requirement in Crim.R. 33(B) mirrors the “unavoidably prevented”

requirement in R.C. 2953.23(A)(1).’” Bethel, 2022-Ohio-783, at ¶ 59, quoting

Barnes, 2018-Ohio-1585, at ¶ 28 (8th Dist.). See also Johnson, 2024-Ohio-134, at

¶ 16, fn. 3. We are therefore required to apply the “unavoidably prevented” analysis

in the Crim.R. 33(B) context just as in the postconviction-relief context. Allen,

2024-Ohio-970, at ¶ 33 (8th Dist.), citing Bethel at ¶ 59.

              Moreover, “even if the offender demonstrates the ‘unavoidably

prevented’ prong of the analysis, that alone is insufficient to demonstrate reversible

error with the trial court’s decision denying the motion for leave.” Whatley, 2024-

Ohio-4909, at ¶ 8 (8th Dist.). “If the hearing on a motion for new trial would be ‘an

exercise in futility’ in light of decisions within the same case pertaining to a

simultaneously filed petition for postconviction relief, no reversible error over the

denial of leave has occurred.”      Id., quoting Bethel at ¶ 59.     Bethel therefore

“establishes that appellate courts must consider the implications of any petition for

postconviction relief in reviewing a motion for leave to file a motion for new trial in

which the same arguments are advanced.” Whatley at ¶ 9.

              We have already concluded that the trial court lacked jurisdiction to

consider Jones’s untimely, successive petition for postconviction relief because he

failed to present affidavits demonstrating that he was unavoidably prevented from

obtaining the proffered evidence. Jones failed to show that the State suppressed the

prosecutor’s interoffice memorandum or any other evidence in his case or that he
was unavoidably prevented from discovering Larissa Taylor and her purported

testimony. The trial court here concluded the same, noting that Jones’s arguments

in support of his motion for leave to file motion for new trial mirrored his arguments

regarding his untimely, successive petition for postconviction relief, and that the

same “unavoidably prevented” standard applies. We find that the trial court did not

abuse its discretion in denying Jones’s motion for leave. Any hearing on a motion

for new trial based on Jones’s proffered new materials would have been an exercise

in futility. Jones’s third assignment of error is overruled.

  C. Second Assignment of Error – Res Judicata

              The trial court’s discussion of the application of res judicata to Jones’s

untimely, successive petition for postconviction relief and his motion for leave to file

motion for new trial is limited and somewhat unclear. To the extent we find, as

discussed above, that the doctrine of res judicata is applicable to Jones’s ineffective-

assistance-of-counsel arguments, this assignment of error is overruled. In all other

respects this assignment of error is moot based on our disposition of Jones’s

remaining assignments of error.

              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.




DEENA R. CALABRESE, JUDGE

MICHELLE J. SHEEHAN, A.J., and
ANITA LASTER MAYS, J., CONCUR