State v. Jury

       [Cite as State v. Jury, 

.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                     ERIE COUNTY


State of Ohio                                         Court of Appeals No. E-22-005

       Appellee                                       Trial Court No. 2013-CR-0472

v.

Brian Jury                                            DECISION AND JUDGMENT

       Appellant                                      Decided: December 9, 2022

                                                  *****

       Kevin J. Baxter, Erie County Prosecuting Attorney, and
       Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.

       Brian Jury, Pro se.

                                                  *****
       MAYLE, J.

       {¶ 1} Appellant, Brian Jury, appeals the January 20, 2022 judgment of the Erie

County Court of Common Pleas construing seven filings that Jury made over the course

of three and one-half years as successive petitions for postconviction relief and

summarily denying them. We affirm.
                                       I. Background

       {¶ 2} In 2014, a jury found Jury guilty of two counts of rape, one count of

felonious assault, two counts of abduction, and three gun specifications. State v. Jury,

6th Dist. Erie No. E-14-100, 

. We affirmed Jury’s convictions and

sentences on direct appeal. Id. at ¶ 77.

       {¶ 3} In 2015, while his direct appeal was pending, Jury filed a petition for

postconviction relief. In his petition, he asserted seven claims that boiled down to: (1)

the trial court lacked subject matter jurisdiction; (2) his conviction was based on illegally

obtained evidence; (3) his trial counsel was ineffective for a variety of reasons, both

before and during trial; (4) the state violated Brady v. Maryland, 

, 

, 

 (1963), by failing to turn over emails and witnesses that could have

provided Jury with an alibi; (5) the trial court relied on inaccurate information to justify

imposing consecutive sentences; and (6) he was prejudiced by the trial court’s failure to

sua sponte change the trial’s venue due to pretrial publicity. The trial court denied Jury’s

petition, and Jury did not appeal that decision.

       {¶ 4} Beginning in July 2018, Jury filed the seven documents underlying this

appeal. Primarily at issue are his “MOTION FOR RELIEF FROM JUDGMENT

PURSUANT TO CIV. R. 60(B)” and “MOTION FOR LEAVE TO FILE A ‘DELAYED

MOTION FOR A NEW TRIAL’ UNDER CRIMINAL RULE 33(B).” He also filed (1) a

document that he styled a “subpoena” in which he requested that the trial court order the




2.
wireless carriers for his and the victim’s phones to provide “cell-site location

information” (“CSLI”)—data from a cellphone that is maintained by the wireless carrier

and that gives time-stamped information regarding the phone’s physical location—and

text messages; (2) a motion for an emergency injunction to order the wireless carriers to

preserve any CSLI and text messages; (3) a request for records that sought three of the

sets of cellphone records that the state provided to defense counsel in discovery; (4) a

motion to “renew” his Civ.R. 60(B) motion; and (5) a delayed motion for a new trial

under Crim.R. 33(A)(6), which alleged that the CSLI data and the text messages—that

Jury did not actually have—was newly-discovered evidence.1

       {¶ 5} In his Civ.R. 60(B) motion for relief from judgment, Jury argued that he was

entitled to relief under Civ.R. 60(B)(5) because the state violated Brady by failing to

provide him with CSLI despite counsel’s discovery requests for phone records. Notably,

Jury did not allege that the state possessed CSLI for any of the phones; he merely claimed

that CSLI “should have been part of * * *” the information requested in the subpoenas or

warrants that the state issued to the cellular carriers so that the information that the state

received from the carriers included CSLI. Jury claimed that he learned of the existence

of CSLI on June 23, 2018, while watching a news story about the United States Supreme




1
  The state filed responses to many of Jury’s motions, and Jury filed various replies. For
the most part, the details of these filings are not germane to the issues before us.




3.
Court’s decision in Carpenter v. United States, 

, 

 (2018).

He filed his motion for relief approximately two weeks later.

       {¶ 6} In his Crim.R. 33(B) motion for leave to file a delayed motion for new trial,

Jury argued that he was unavoidably prevented from discovering CSLI from his phone

and the victim’s phone on the date of the incidents underlying this case and from

discovering the contents of more than 150 text messages between him and the victim (as

opposed to the fact of text-message contact between them), despite his counsel’s requests

before trial for all cellphone records from Jury’s and the victim’s phone numbers. He

argued that the state should have subpoenaed this information from the wireless carriers

because the defense had requested “all” cellphone records, but that it failed to do so. He

explained the reasons for the delay in filing his Crim.R. 33(B) motion.

       {¶ 7} Jury also argued that the result of his trial would have been different if he

had access to the CSLI and the text messages. He claimed that the location information

would have corroborated his version of events and discredited the victim’s version of

events. He also alleged that the content of the text messages “would have shown a sex-

for-hire relationship—mostly instigated by the alleged victim.” Ultimately, Jury believed

that “[s]uch physical, undisputable, exculpatory material evidence would have obviated

[Jury’s] testimony—the only link to the jury’s finding [Jury] guilty on (2) two counts of

rape [sic].”




4.
       {¶ 8} On January 20, 2022, the trial court issued a single judgment entry resolving

all of the pending motions. The court found that Jury’s filings were “in effect,

‘successive petitions for Post Relief Conviction[.] [sic]’” (Footnote omitted.) The court

“thoroughly reviewed the stated filings and the record of this case, including the appellate

record * * *”—which apparently consisted of our decision in Jury’s direct appeal and the

Ohio Supreme Court’s decision to decline jurisdiction over Jury’s appeal from our

decision— “as well as the applicable case law” before finding that Jury’s “Motions are

not well-taken, and should be denied.” (Emphasis sic and footnote omitted.) Because the

trial court construed Jury’s filings as successive postconviction relief petitions, it did not

issue findings of fact and conclusions of law.

       {¶ 9} Jury now appeals, raising three assignments of error:

              1) The Trial Court erred when it denied Defendant/Appellant’s Civil

       Rule 60(B) Motion for Relief from Judgment without holding a hearing.

              2) The Trial court abused its discretion, and violated Appellant’s

       Due Process rights when it denied Defendant/Appellant’s Criminal Rule

       33(B) [motion] for leave to File a Delayed Motion for a New Trial based on

       Newly Discovered Evidence (Crim. R. 33(A)(6)) without a hearing; and,

       when it denied Appellant a fair mechanism to develop facts to support the

       motion for leave.




5.
              3) Appellant’s conviction and sentence is voidable because

       Appellant was denied his U.S. Constitutional Right(s) of Due Process and a

       Fair Trial because of prosecutorial misconduct resulting in “Fraud on the

       Court.”

                                   II. Law and Analysis

                     A. The state did not commit Brady violations.

       {¶ 10} For ease of discussion, before turning to Jury’s assignments of error, we

will address the overarching theme in Jury’s brief: whether the state committed Brady

violations by failing to subpoena CSLI data and text messages from the cellular providers

for Jury’s and the victim’s cellphones. We find that it did not.

       {¶ 11} Brady imposes on the government “an obligation to turn over evidence that

is both favorable to the defendant and material to guilt or punishment.” State v. Osie, 

, 

, 

. In Brady, the U.S. Supreme

Court held that “the suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 

, 

, 

. The rule applies to both exculpatory and

impeachment evidence. United States v. Bagley, 

, 

, 

 (1985). The court has also explained that evidence is material under Brady

“‘if there is a reasonable probability that, had the evidence been disclosed to the defense,




6.
the result of the proceeding would have been different.’” Kyles v. Whitley, 

, 

, 

 (1995), quoting 

. “A ‘reasonable

probability’ is a probability sufficient to undermine confidence in the outcome.” 

; State v. Johnston, 

, 

 (1988), paragraph five of the

syllabus.

       {¶ 12} A Brady violation has three elements: (1) the state suppressed evidence,

either willfully or inadvertently; (2) the evidence is favorable to the defendant as either

exculpatory or impeachment evidence; and (3) prejudice results to the defendant—i.e.,

the evidence was material. Strickler v. Greene, 

, 

,

 (1999). Determining whether the evidence was material “is not just a

matter of determining whether, after discounting the inculpatory evidence in light of the

undisclosed evidence, the remaining evidence is sufficient to support the jury’s

conclusions.” 

. Rather, the relevant question is whether, in the absence of the

evidence, the defendant received a fair trial, “understood as a trial resulting in a verdict

worthy of confidence.” 

; State v. Brown, 

, 2007-Ohio-

4837, 

. Thus, Brady is violated “when the evidence that was not

disclosed ‘could reasonably be taken to put the whole case in such a different light as to

undermine confidence in the verdict.’” 

 quoting 

. The “materiality” of

suppressed evidence must be considered collectively, not item by item. 

. We




7.
review of the materiality of evidence de novo. State v. Carroll, 6th Dist. Lucas No. L-05-

1362, 

.

       {¶ 13} In this case, the basis for Jury’s motion for relief from judgment, motion

for leave to file a motion for a new trial, and several of the other motions underlying this

appeal is his claim that the prosecution suppressed CSLI data and text messages by

refusing to obtain them from the wireless carriers. To be clear: Jury does not allege that

the prosecutors or another state agent (e.g., the police or a crime lab) actually possess

CSLI from his and the victim’s phones or the full text messages that Jury and the victim

sent to each other. Rather, he claims that the prosecutor knew that CSLI existed, and

knew that CSLI and full text messages could be obtained from wireless carriers, yet the

state refused to subpoena this information, despite requests from defense counsel for “all”

cellphone records of Jury and the victim. Jury has not provided any proof that any of this

information exists or was available to the state, however, and a Brady violation cannot be

based wholly on speculation.

       {¶ 14} Jury’s Brady claim falls apart from the beginning. Regarding CSLI, Jury

did not actually present the trial court (or this court) with any new facts or evidence

relating to his case. Although he speculates that CSLI data for his phone and the victim’s

phone exists—and that this data would support his version of the facts while

simultaneously discrediting the victim and her version of the facts—he does not offer any

proof of this beyond a U.S. Supreme Court case that describes, generally and in dicta,




8.
what CSLI is. See Carpenter, 

, 

. But Carpenter

does not specifically link CSLI to Jury’s case or in any substantive way call into question

the jury’s guilty verdicts on the two counts of rape.2 Jury does not provide any further

information about CSLI that is specific to his case, which could help take his claim

beyond pure speculation.

       {¶ 15} Mere speculation, without more, is insufficient to support a claimed Brady

violation. State v. Sullivan, 10th Dist. Franklin No. 13AP-861, 

,

citing State v. Moore, 10th Dist. Franklin Nos. 11AP-1116 and 11AP-1117, 2013-Ohio-

3365, ¶ 43; and State v. Hanna, 

, 

, 

, ¶

60; see also State v. Bulls, 9th Dist. Summit No. 27713, 

 (Trial

court properly denied appellant’s postconviction relief petition because his affidavit “lists

no exculpatory or otherwise favorable evidence that was withheld from him during the

trial court proceedings. Rather, it merely claims that such evidence may exist since other

cases with different defendants featured a Brady violation on the part of the [state]. Such

bare facts cannot satisfy the Brady standard.”). Everything that Jury is claiming about

CSLI—from the availability of CSLI data for his and the victim’s phones, to the state’s


2
  Although Jury’s request for relief in his brief is worded more broadly, in his motion for
relief from judgment and his later “MOTION TO RENEW” his Civ.R. 60(B) motion,
Jury argued only that “[t]he jury could not have returned a guilty verdict on two counts of
rape * * *” (and, presumably, the accompanying gun specifications); he did not argue that
his felonious assault, abduction, and remaining gun specification convictions should be
vacated. Because Jury confined the relief he requested in the trial court to the two rape
convictions, we will also confine our review to those convictions.




9.
knowledge of CSLI, to the usefulness of the information for Jury’s case—is based on

varying degrees of speculation. Without some evidence—beyond Jury’s hypotheses—

that CSLI exists for the phone numbers Jury wants to track and the state did, in fact,

know about and suppress the CSLI and text messages, or failed to obtain the information

from a state agent who knew about the evidence, Jury cannot prove that the state violated

Brady by choosing to not subpoena the information.

       {¶ 16} Second, regarding the text messages, it appears from the record (and Jury

has not provided any evidence to the contrary) that the state provided the defense with all

of the information that the prosecutor and his agents had. The record shows that the state

disclosed multiple cellphone-related records to the defense, including: (1) “Verizon

Wireless phone records from search warrant”; (2) “T-Mobile records”; (3) “Verizon

Wireless records”; (4) “DVD of Verizon Wireless phone records”; (5) “CD of search

warrant for I-Phone [sic] 4”; (6) “Instructions from Verizon Wireless to view their CD”;

and (7) “DVD of search warrant for Motorola phone by Erie County Sheriff’s Office.”

This is all that Brady requires. Unless Jury can produce some evidence showing that the

state possessed other cellphone records, including, perhaps, the text messages he is

seeking, he cannot support his Brady claim on this point.

       {¶ 17} We do not see any evidence in the record to suggest that another agent of

the state had the phone records that Jury sought before trial, but that the state failed to

obtain them from the agent and provide them to the defense. If that were the case, the




10.
state would be suppressing records in violation of Brady, but the state cannot suppress

records that it does not have—and that have never been in the possession of a state agent.

State v. McGuire, 8th Dist. Cuyahoga No. 105732, 

; State v.

McClurkin, 10th Dist. Franklin No. 08AP-781, 

, ¶ 57. “The fact that a

defendant wishes to have materials that may or may not exist, and may or may not be in

the prosecutor’s custody or control, does not demonstrate that such materials are Brady

materials that the prosecutor has a duty to disclose.” McClurkin at ¶ 57.

       {¶ 18} Moreover, Jury’s contention that the state should be responsible for

obtaining evidence that is potentially useful to the defense and that the state does not

otherwise have or need does not square with Ohio law. As the Twelfth District recently

explained:

              “Ohio law generally recognizes that the state need not gather

       evidence on the defendant’s behalf.” State v. Fornshell, 1st Dist. Hamilton

       No. C-180267, 

, 

, ¶ 10, citing Kettering

       v. Baker, 

, 

 (1975). While the

       Due Process Clause of the Fourteenth Amendment to the United States

       Constitution requires that a state disclose material evidence favorable to the

       defendant and prohibits the state from failing to preserve such evidence or

       destroying such evidence in bad faith; see Brady v. Maryland, 

,

       

, 

 (1963); Arizona v. Youngblood, 

.
       

, 

 (1988); the state has no duty to gather

       exculpatory evidence. State Brown, 3d Dist. Hancock No. 5-17-19, 2018-

       Ohio-899, 

, ¶ 32; State v. Farris, 2d Dist. Clark No.

       2003 CA 77, 

, 

, ¶ 20. The state does not

       have an obligation “to engage in affirmative action in gathering evidence

       which an accused might feel necessary to his defense. The accused must

       protect his own interests.” 

. With that in

       mind, “when the state has failed to gather exculpatory evidence or to fully

       investigate the allegations, the defendant may either investigate the charge

       and collect the evidence himself, if such evidence is available, or he may

       point out the deficiencies in the state’s investigation at trial.” Farris at ¶

       20.

(Emphasis added.) State v. Young, 

, 

 (12th

Dist.). To the extent that the state does have a duty to affirmatively gather exculpatory

evidence, that duty only extends to “‘any favorable evidence known to the others acting

on the government’s behalf in the case.’” (Emphasis added.) State v. McNeal, Slip

Opinion No. 

, -- N.E.3d --, ¶ 22, quoting Kyles, 

, 

, 

.

       {¶ 19} In short, we disagree with Jury’s position that the state should have

obtained evidence supporting his case for him. Due process does not require it, and we




12.
will not find that the state violated Brady by failing to obtain—on Jury’s behalf—

evidence held by a third party that was not “‘acting on the government’s behalf in the

case.’” 

       {¶ 20} Finally, a Brady violation only occurs when the defendant does not have

access to the information that the state suppresses before or during trial. If the defendant

knows of essential facts that allow him to take advantage of the information, or has

access to the information through another source, the state’s failure to disclose does not

amount to a constitutional violation under Brady. State v. Ketterer, 

,

, 

. Assuming that the state’s disclosure of cellular

data was defective in some respect, Jury still could not show a Brady violation.

       {¶ 21} The record contains a subpoena issued by the defense to Jury’s wireless

carrier for “any and all text messages sent and received by * * *” Jury’s phone number

for a one-year period beginning the date that the crimes underlying this case occurred.

The record does not contain any indication that the wireless carrier failed to honor that

subpoena (i.e., by filing a motion to quash or failing to respond). This indicates that

defense counsel had Jury’s text messages—which would include any messages he sent to

and received from the victim—in some form before trial.3 So, assuming that the state


3
  We note that the record before us in this appeal is not the entire record generated in this
case—we have the parties’ filings since the beginning of the case, the journal entries, the
transcript of the jury trial without most of the exhibits, and the transcript of the
sentencing hearing. So we cannot say with absolute certainty that Jury’s attorney never
discussed his subpoena of text messages on the record, but such a discussion is not in the
portions of the record we are able to review.



13.
did, in fact, fail to turn over messages, its violation of Brady did not rise to the level of

violating Jury’s due process rights.

       {¶ 22} In sum, we find that Jury has not shown that the state violated Brady by

failing to obtain CSLI data and text messages from the wireless carriers. Jury failed to

offer any evidence that the prosecutor or a state agent had this information in their

possession, the state was not obligated to obtain the evidence on Jury’s behalf, and,

assuming some Brady violation did occur, the record indicates that Jury’s attorney

subpoenaed Jury’s text messages without objection, which gave him access to the

information he wanted to discover by obtaining the victim’s text messages to him.

      B. The trial court properly denied Jury’s motion for relief from judgment.

       {¶ 23} Turning to Jury’s first assignment of error, he argues that the trial court

erred by denying his Civ.R. 60(B) motion. He contends that the state deliberately

withheld CSLI and text messages, which constituted “fraud on the court(s)” sufficient to

justify a hearing on his claim that he is entitled to relief from his rape convictions under

the “any other reason justifying relief * * *” provision in Civ.R. 60(B)(5).

       {¶ 24} The state responds that the trial court properly construed Jury’s Civ.R.

60(B) motion as a postconviction relief petition, and then denied the motion as a

successive petition for postconviction relief because Jury did not demonstrate that one of

the exceptions in R.C. 2953.23 applied. Because the court properly classified Jury’s

motion as an unjustified successive petition for postconviction relief, we agree.




14.
       {¶ 25} As a preliminary matter, we find that the trial court correctly recast Jury’s

motion for relief from judgment as a petition for postconviction relief. Filing a petition

for postconviction relief under R.C. 2953.21 “is the exclusive remedy by which a person

may bring a collateral challenge to the validity of a conviction or sentence in a criminal

case * * *.” (Emphasis added.) R.C. 2953.21(K); see also State v. Parker, 

, 

, 

, ¶ 33 (lead opinion), citing State v. Schlee,

, 

, 

, ¶ 12. A trial court can recast a

motion filed by a criminal defendant as a petition for postconviction relief if the motion is

(1) filed after the defendant’s direct appeal, (2) claims a denial of constitutional rights,

and (3) seeks to void or vacate the defendant’s conviction.4 Schlee at ¶ 12.

       {¶ 26} Jury’s motion for relief from judgment meets the criteria for a

postconviction relief petition outlined in Schlee: it was filed after Jury’s direct appeal, he

claimed a denial of his constitutional rights in the form of a Brady violation, and he

sought “relief from his conviction * * *.” Thus, the trial court properly construed it as a


4
  We recognize that the Rules of Civil Procedure can apply in criminal cases when “no
procedure is specifically prescribed by * * *” the Rules of Criminal Procedure, Crim.R.
57(B), so a Civ.R. 60(B) motion is sometimes appropriate and applicable in criminal
cases. See, e.g., State v. Berk, 10th Dist. Franklin No. 21AP-121, 

(determining that the trial court should not have construed appellant’s Civ.R. 60(B)
motion as a petition for postconviction relief when he cited Civ.R. 60(B)(1) and (2) as
grounds for relief and the motions underlying his request did not claim a denial of
constitutional rights or seek to void his conviction). In this case, however, Crim.R. 35
outlines the procedure for postconviction relief petitions, and Jury’s purported Civ.R.
60(B) motion falls squarely within the parameters detailed in Schlee for construing a
motion as a postconviction relief petition, so we need not resort to the civil rules to
resolve his claims.



15.
successive petition for postconviction relief. We also note that Jury acknowledged in his

motion that “[t]he Ohio Supreme Court has allowed Civ. R. 60(B) Motions to be

reconstrued as a post-conviction relief” petition, so he was aware of the possibility that

the trial court could treat his motion for relief from judgment as something else.

       {¶ 27} This is Jury’s second postconviction relief petition. R.C. 2953.23(A)

allows a trial court to entertain a successive petition for postconviction relief only under

very limited circumstances. One circumstance—which is inapplicable here—involves

DNA testing that establishes the defendant’s actual innocence. R.C. 2953.23(A)(2). The

other circumstance requires the defendant to first show either that (1) he was

“unavoidably prevented” from discovering the facts he is relying on to present his claim

for relief, or (2) the United States Supreme Court recognized a new right that

retroactively applies to him. R.C. 2953.23(A)(1)(a). After proving one of those

exceptions, the defendant must also show by clear and convincing evidence that no

reasonable factfinder would have found him guilty of the offenses he was convicted of

but for the constitutional error at his trial. R.C. 2953.23(A)(1)(b).

       {¶ 28} Showing that a defendant was unavoidably prevented from discovering a

fact requires “more than simply showing he was unaware of a fact. ‘Unavoidably

prevented from discovering’ typically means the defendant was unaware of the facts upon

which the petition was based and he was unable to discover them through reasonable




16.
diligence.” (Emphasis added.) State v. Clay, 

, 

 (7th

Dist.).

          {¶ 29} When the defendant claims that the state committed a Brady violation and

suppressed the evidence he is relying on, he is not required to show that he was unable to

discover the evidence with reasonable diligence; the prosecution’s suppression of the

evidence is sufficient to satisfy the “unavoidably prevented” requirement in R.C.

2953.23(A)(1)(a). State v. Bethel, 

, 

, 

. We have already determined that the state did not commit a Brady violation in this

case, however, so, for the trial court to have jurisdiction to hear his successive petition for

postconviction relief, Jury must show that he was unable to discover the existence of the

text messages and CSLI specific to his case with reasonable diligence.

          {¶ 30} Jury first argues that he was, and continues to be, unavoidably prevented

from discovering the CSLI from his and his victim’s cellphones because of the state’s

failure to subpoena the CSLI, despite the prosecutor ostensibly knowing about the

existence of CSLI, in general, at the time of Jury’s trial, and that Jury only “discovered”

the existence of CSLI, in general, approximately two weeks before he filed his motion for

relief from judgment. There are several problems with Jury’s argument.

          {¶ 31} First, as discussed above, Jury did not provide any new facts or evidence

relating to his case. Instead, he only speculates about CSLI that may or may not exist.




17.
       {¶ 32} Further, although Jury contends that he could obtain the CSLI with the

court’s assistance, a defendant who is not sentenced to death is not entitled to discovery

when he files a successive postconviction relief petition. E.g., State v. Gapen, 2d Dist.

Montgomery No. 28808, 

 (“R.C. 2953.21, the post-conviction relief

statute, does not grant a petitioner the right to conduct discovery.”); State v. Conway,

10th Dist. Franklin No. 17AP-504, 

 (“[T]he discovery procedure

set forth under R.C. 2953.21(A)(1) only applies to an initial, timely petition for post-

conviction relief [filed by a petitioner sentenced to death], and not to a successive petition

filed under R.C. 2953.23.”); see also State v. Jordan, 6th Dist. Lucas No. L-02-1130,

, ¶ 29, citing State v. Calhoun, 

, 

(1999); and State v. Bays, 2d Dist. Greene No. 2003 CA 4, 

, ¶ 20

(Finding under an earlier version of the postconviction relief statute that “a petitioner

receives no more rights than those granted by the statute * * * [and t]he statute does not

provide to a trial court the authority to conduct or compel discovery.”). Because Jury

was not sentenced to death, and this is not a timely, initial postconviction relief petition,

Jury is not statutorily entitled to the discovery that he hopes to obtain.

       {¶ 33} Nor does Jury’s ignorance of the existence of CSLI, in general, support his

argument that he was unavoidably prevented from discovering the CSLI specific to this

case. The crux of Jury’s argument is that the state knew that CSLI existed because the

prosecutor used CSLI to convict a defendant in an earlier Erie County case, the state




18.
deliberately chose not to subpoena CSLI data because it knew that the data would be

damaging to its case, and the state’s willful failure to obtain the CSLI from his and the

victim’s wireless carriers prevented him from “discovering” CSLI until he saw a news

story about Carpenter in June 2018. Jury’s theories are nothing but speculation; he has

not presented any actual evidence to support his conjecture aside from a 2012 decision

from this court that discusses the Erie County prosecutor’s office using CSLI. See State

v. Gipson, 6th Dist. Erie No. E-10-038, 

.

       {¶ 34} Similarly, Jury argues that he was, and continues to be, unavoidably

prevented from discovering every text between him and the victim because the records

that the state had in its possession—which it turned over to the defense—were

incomplete. He claims that the state continues to withhold the actual text messages

between him and the victim, despite Jury making several discovery requests for all

cellphone records from his and the victim’s phone numbers. He contends that the state

could have requested the messages (and their corresponding CSLI) through subpoenas to

the wireless carriers, but failed to do so.

       {¶ 35} Again, Jury fails to present any new facts or evidence relating to the text

messages. Nor does he offer proof that the state could obtain all of the text messages

between him and the victim from the wireless carriers. His primary argument regarding

the text messages seems to be that the texts would show that Jury and the victim were

involved in a sex-for-hire relationship, which, he claims, the victim primarily initiated.




19.
Jury seems to imply that their sexual interactions the day of the crimes were consensual

because of their prior transactional relationship. But, when considered with the other

testimony at trial—which included sources other than the victim, who had a host of

credibility issues—this is insufficient to exonerate Jury. See, generally, Jury, 6th Dist.

Erie No. E-14-100, 

.

       {¶ 36} Again, it does not appear from Jury’s filings or the record that the state, at

any point in time, subpoenaed or possessed any text messages beyond those that it turned

over to the defense in discovery. Jury has not presented any other evidence to suggest

that the state had or has other cellphone records—including text messages—that it did not

turn over. And, again, the state is not obligated to gather evidence on Jury’s behalf from

third parties who are not state agents. Young, 

, 

; see also McClurkin, 10th Dist. Franklin No. 08AP-781, 

, at ¶ 57.

       {¶ 37} Taken together, this all shows that Jury was not unavoidably prevented

from discovering the facts underlying his postconviction relief petition. First and

foremost, he has not presented any new evidence for us to review. He is merely

speculating—without producing any type of proof—that new evidence exists and that the

evidence would have changed the result of his trial. Second, Jury has not demonstrated

that the state committed Brady violations by failing to obtain CSLI and text messages

from an entity that is not a state agent or under the state’s control. Nor has he shown that

he was unavoidably prevented from discovering the information. Although Jury was




20.
clearly unaware of what CSLI was until June 2018, his filings show that he was aware

that some of the text messages between him and the victim were not in the records turned

over by the state, and nothing indicates that the defense could not have discovered this

information through some simple investigation—i.e., reasonable diligence.

       {¶ 38} Because Jury has failed to show that the state violated Brady or that he

could not have discovered the CSLI and texts through reasonable diligence, he cannot

show that he was unavoidably prevented from discovering the facts underlying his

postconviction relief petition. Bethel, 

, 

, 

; Clay, 

, 

. Thus, the trial court was not

able to entertain his successive postconviction relief petition and properly dismissed it.

R.C. 2953.23(A).

       {¶ 39} Jury’s first assignment of error is not well-taken.

  C. The trial court properly denied Jury’s motion for leave to file for a new trial.

       {¶ 40} In his second assignment of error, Jury argues that the trial court erred by

classifying his motion for leave to file a motion for a new trial as a successive petition for

postconviction relief and summarily denying it along with the other six motions that Jury

filed from July 2018 to January 2022. He contends that, unlike some other motions, a

motion under Crim.R. 33(B) cannot be reclassified as a postconviction relief petition and

must be considered under the procedures outlined in Crim.R. 33.




21.
       {¶ 41} The state again responds that the trial court properly construed Jury’s

Crim.R. 33(B) motion as an unjustified successive petition for postconviction relief.

       {¶ 42} We agree with Jury that the trial court erroneously considered his motion

under Crim.R. 33(B) as a postconviction relief petition. Bethel, 

,

, 

 (a motion filed under Crim.R. 33 is neither a

collateral attack on the conviction that is subject to R.C. 2953.21(K), nor the type of

motion that is subject to recasting as a petition for postconviction relief). We find that

the error was harmless, however, because Jury cannot show by clear and convincing

proof that he was unavoidably prevented from discovering the facts underlying his

motion within 120 days of his trial. See Brown v. State, 

, 

, ¶ 41 (6th Dist.), citing Toledo v. Schmiedebusch, 

, 2011-

Ohio-284, 

 (6th Dist.); and Reynolds v. Budzik, 

, 

 (6th Dist.1999), fn. 3 (“An appellate court cannot reverse a

lower court decision that is legally correct even if it is a result of erroneous reasoning. *

* * That is, this court will not reverse a trial court decision that ‘achieves the right result

for the wrong reason, because such an error is not prejudicial.’”).

       {¶ 43} Under Crim.R. 33(A)(6), a defendant may move for a new trial “[w]hen

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

reasonable diligence have discovered and produced at the trial.” The motion must be

filed within 120 days after the jury renders its verdict. Crim.R. 33(B). A defendant who




22.
fails to file a motion within the 120-day period must seek leave from the trial court to file

a delayed motion. State v. Montgomery, 6th Dist. Lucas No. L-15-1282, 2016-Ohio-

7527, ¶ 43. To be entitled to leave to file a delayed motion for a new trial the defendant

must provide “clear and convincing proof” that he was “unavoidably prevented” from

discovering the evidence on which his motion is based. Crim.R. 33(B); State v.

Sandoval, 6th Dist. Sandusky Nos. S-13-032 and S-13-034, 

.

       {¶ 44} Clear and convincing proof is more than “a mere ‘preponderance of the

evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable

doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm

belief or conviction as to the facts sought to be established.” State v. Marcum, 

, 

, 

, ¶ 22, quoting Cross v. Ledford, 

, 

 (1954), paragraph three of the syllabus.

       {¶ 45} The “unavoidably prevented” requirement in Crim.R. 33 mirrors the one in

R.C. 2953.23(A)(1). Bethel, 

, 

, 

, citing State v. Barnes, 5th Dist. Muskingum No. CT2017-0092, 

. Thus, if a defendant is unavoidably prevented from discovering facts for

postconviction relief purposes, he is also unavoidably prevented from discovering them

for Crim.R. 33(B) purposes. See 

 The converse is also true: if a defendant is not

unavoidably prevented from discovering facts for postconviction relief purposes, he is

also not unavoidably prevented from discovering them for Crim.R. 33(B) purposes. A




23.
defendant satisfies the “unavoidably prevented” requirement by establishing that the

prosecution suppressed the evidence the defendant intends to rely on in seeking a new

trial. McNeal, Slip Opinion No. 

, -- N.E.3d --, at ¶ 17, citing 

.

          {¶ 46} Generally, we review a trial court’s decision on a Crim.R. 33(B) motion for

an abuse of discretion. Id. at ¶ 13. Abuse of discretion means that the trial court’s

decision was unreasonable, arbitrary, or unconscionable. State ex rel. Askew v. Goldhart,

, 

 (1996). However, when the defendant alleges a

Brady violation, we review the trial court’s decision de novo. McNeal at ¶ 13.

          {¶ 47} We have already determined that the state did not commit a Brady violation

relative to the cellphone records in this case, and, consequently, that Jury was not

unavoidably prevented from discovering the CSLI data and text messages for purposes of

his postconviction relief petition. Those findings have equal weight for his motion for

leave to file a motion for a new trial. See 

. Thus, because Jury was not

unavoidably prevented from discovering the CSLI data and text messages for purposes of

his Crim.R. 33(B) motion, we find that the trial court did not abuse its discretion by

denying his motion, although it did so for an incorrect reason. See Brown, 2019-Ohio-

4376, 

, at ¶ 41.




24.
         D. Jury has not shown that the state violated his due process rights.

       {¶ 48} In his third assignment of error, Jury largely regurgitates his arguments

from his first two assignments of error. He contends that his convictions are voidable

because the state failed to obtain the CSLI data and text messages for him. The thrust of

his argument here is that the state should have obtained information from the third-party,

nongovernmental wireless carriers on his behalf, and its failure to do so deprived him of

due process.

       {¶ 49} In response, the state reiterates that Jury failed to comply with the

postconviction relief requirements in R.C. 2953.23(A) and Crim.R. 33(B), so the trial

court properly denied his motions.

       {¶ 50} Without belaboring the point, we again stress that the information that Jury

wants—if it actually exists—is held by wireless carriers that are not “‘acting on the

government’s behalf’” in this case. McNeal, Slip Opinion No. 

, --

N.E.3d --, at ¶ 22, quoting Kyles, 

, 

, 

. The

state’s responsibility to obtain and share Brady evidence is not triggered unless the

evidence is held by the prosecutors themselves or by a person or entity that is working on

the state’s behalf to help prosecute the case. Jury does not argue that the wireless carriers

fall into that category, so there is no evidence before us that the state was responsible for

obtaining evidence from the carriers on Jury’s behalf.




25.
       {¶ 51} Because the state did not have a duty to obtain information from the

wireless carriers for Jury, its failure to do so did not violate his due process rights.

Accordingly, Jury’s third assignment of error is not well-taken.

                                       III. Conclusion

       {¶ 52} For the foregoing reasons, the January 20, 2022 judgment of the Erie County

Court of Common Pleas is affirmed. Jury is ordered to pay the costs of this appeal pursuant

to App.R. 24.

                                                                           Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J.                              ____________________________
                                                          JUDGE
Christine E. Mayle, J.
                                                  ____________________________
Myron C. Duhart, P.J.                                     JUDGE
CONCUR.
                                                  ____________________________
                                                          JUDGE




       This decision is subject to further editing by the Supreme Court of
  Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
       version are advised to visit the Ohio Supreme Court’s web site at:
                http://www.supremecourt.ohio.gov/ROD/docs/.




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