The Supreme Court of Ohio today rejected a man’s effort to vacate his attempted murder conviction. The man’s claim was based on the victim stating seven years after the conviction that he might have misidentified who shot him.

In a 4-3 decision, the Supreme Court affirmed the judgment of the Eighth District Court of Appeals, which had upheld a Cuyahoga County Common Pleas Court decision not to grant a request for a hearing sought by Eric Johnson. The hearing was to determine whether Johnson was entitled to a new trial.

Johnson was convicted of the 2013 shooting of James Keith and is serving a 21-year prison sentence. In 2020, Johnson produced a sworn statement from Keith, stating Keith might have incorrectly identified Johnson as the shooter. The Court found Johnson failed to establish why it took seven years to discover Keith’s misgivings.

Writing for the Court majority, Justice Joseph T. Deters explained that R.C. 2953.23(A)(1)(a) required Johnson to demonstrate he was “unavoidably prevented,” not merely “prevented,” from discovering Keith’s uncertainty about his testimony. Justice Deters wrote that Johnson does not attempt to explain in his petition when or how he was notified of Keith’s change of heart or what prevented the renunciation from being discovered earlier.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer and R. Patrick DeWine joined Justice Deters’ opinion.

In a dissenting opinion, Justice Michael P. Donnelly wrote that Johnson was at least entitled to a trial court hearing to determine whether Keith’s statement provided grounds for vacating Johnson’s sentence. Keith may have been in fear of coming forward earlier, and any attempts by Johnson to contact Keith could have been viewed as an attempt to retaliate against or intimidate a witness, the dissent stated.

Justices Melody Stewart and Jennifer Brunner joined Justice Donnelly’s opinion.

Victim Identifies Acquaintance as Shooter
In August 2012, Keith was walking in Cleveland early in the morning when he was robbed and shot. Keith told the police the shooter was a man he knew as “E,” but that he did not know E’s full name. Police obtained a photograph of E, and Keith identified Johnson as the man he knew as E from a police photo array. Johnson was indicted on seven counts, including attempted murder, kidnapping, and aggravated robbery.

At a jury trial, Keith testified that Johnson was the man who shot him, and the jury found Johnson guilty on all counts. Johnson appealed to the Eighth District Court of Appeals, which affirmed his conviction.

Offender Pursued Release From Prison
The majority opinion explained that those convicted of criminal offenses can appeal their convictions and also file postconviction relief petitions. Postconviction relief petitions allow defendants to seek to overturn their sentences by claiming that their rights under the U.S. or Ohio constitutions were infringed. However, R.C. 2953.23(A)(1)(a) only allows a defendant to file one postconviction relief petition, and it must be filed within a year of the conviction.

The Court explained there is an exception allowing additional or untimely petitions to be filed. To be entitled to a trial court hearing on a second or subsequent petition, the petition must establish the accused was “unavoidably prevented” from discovering facts that demonstrate a constitutional violation. Also, the accused must show that if the constitutional violation had not occurred, the accused would not have been convicted.

Before 2020, Johnson filed two unsuccessful postconviction relief petitions. In 2020, he filed a third petition and, for the first time, claimed that Keith had recanted his trial testimony.

Keith signed a handwritten affidavit in August 2020. He swore his only recollection of his assailant was that he was an African American man with gold teeth. Keith said he did not remember much of the night of the incident. He explained in the affidavit that he felt pressured by a police detective to testify against Johnson, even though he was not sure that Johnson was the one who shot him. He revealed that he believes he “identified the wrong person” as his attacker and that he has had doubts about his trial testimony for “the past seven years.”

The trial court denied Johnson’s petition without a hearing. The Eighth District affirmed the decision, and Johnson appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Postconviction Relief Process
The opinion explained the Supreme Court most recently clarified the process for filing second and subsequent postconviction relief petitions in its 2022 State v. Bethel decision. Justice Deters wrote the law puts the burden on Johnson to show he was unavoidably prevented from discovering the evidence he relied upon in his claim.

The Court stated in Bethel that an offender can meet the “unavoidably prevented” requirement by either demonstrating the prosecution improperly withheld the evidence or the petitioner “was previously unaware of the evidence on which the petition relies and could not have discovered it by exercising reasonable diligence.”

The opinion explained that lower courts have been divided on whether the date of an affidavit provided after the deadline for filing the first postconviction relief petition is sufficient to demonstrate the offender was unavoidably prevented from discovering the evidence. Some courts have found a delayed affidavit is enough to trigger a trial court to conduct a hearing on the petition.

Other courts have ruled the delayed submission of a sworn statement is not enough to mandate a hearing. The opinion noted that those courts insisted that there must be some explanation as to why the evidence could not have been obtained sooner and how the offender was unavoidably prevented from obtaining it.

The Court today ruled the statute, R.C. 2953.23, provides a clear definition. By using “unavoidably prevented,” the law indicates the petitioner has to explain why the information could not have been uncovered earlier, the opinion stated.

The opinion noted that Keith’s sworn statement sheds little light on why his change of heart could not have been obtained by Johnson earlier.

Johnson maintained that explanations about why he did not obtain Keith’s statement earlier should be explored at a hearing. The Court, however, ruled that the law requires the petitioner to explain the delay to trigger a hearing. The opinion stated that a hearing is not necessary because anything Keith or Johnson would testify to at a hearing regarding his delay could have been explained in a sworn statement.

The Court noted that Johnson’s petition merely claimed the information in Keith’s affidavit was not available until Keith provided it in 2020. However, Keith’s statement said he spent the last seven years thinking about his testimony and that he felt a weight on his shoulders daily because he did not believe he identified the right person.

“In fact, Keith’s affidavit provides no information about whether Johnson had been prevented, unavoidably or otherwise, from timely discovering Keith’s uncertainties about his identification of Johnson,” the Court concluded.

Trial Court Should Hold a Hearing, Dissent Maintained
In his dissent, Justice Donnelly explained that Johnson consistently maintained his innocence and that no direct physical evidence linked him to Keith’s attack. At Johnson’s trial, the prosecution relied heavily on Keith’s eyewitness identification, the dissent noted. The dissent maintained that to warrant a postconviction relief hearing, Johnson needed only to provide basic information, called a prima facie claim, that stated he was prevented from discovering the new evidence before the general one-year deadline to file a postconviction relief petition, the dissent noted.

Justice Donnelly wrote that the date an affidavit was obtained does not necessarily prove the petitioner was unavoidably prevented from discovering the evidence before the deadline. But the context matters, and in this case, it was sufficient to explain why Johnson could not discover the information earlier. Keith stated he was not well acquainted with Johnson, the dissent noted, and Keith suffered a brutally violent attack for which Johnson was imprisoned because of Keith’s testimony.

If “cross-examination and the penalties for perjury were not enough to convince a witness to testify truthfully and accurately at trial, it is unreasonable to expect the defendant to extract a different result from the witness after trial,” the dissent stated.

The dissent stated that the circumstances of Keith’s revelations were enough to satisfy the standards to conduct a hearing. Requiring Johnson to include more about how the statement was obtained “could be dangerous to the defendant’s claim of innocence, given that a badgered recanting witness would be seen as far less credible than a witness who recanted on his or her own accord,” the dissent concluded.

2022-0488. State v. Johnson, Slip Opinion No. 2024-Ohio-134.

View oral argument video of this case.

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