Background
Patrick R. Sherman was convicted in 2020 of attempted burglary, aggravated arson, and menacing by stalking. He received consecutive prison terms producing a minimum indefinite sentence of 10 years and a potential maximum of 13.5 years. The Tenth District affirmed his convictions on direct appeal in 2021.
Verizon later disclosed that, for certain calls, originating and terminating cell-site locations might have been transposed. After Sherman sought relief under Ohio Criminal Rule 33, the trial court found that the disclosure qualified as newly discovered evidence that Sherman could not have discovered within 120 days of the verdict. It granted him leave to file a new-trial motion, appointed counsel, held an evidentiary hearing, and then denied the motion.
The Court’s Holding
The Tenth District affirmed. Applying the six-part test from State v. Petro and reviewing for abuse of discretion, the court held that Sherman failed to show a strong probability that Verizon’s disclosure would change the result at a new trial. Expert testimony established that Verizon’s issue affected whether a tower was identified as serving the beginning or end of a call, but the call at issue used the same originating and terminating tower. The reporting problem therefore could not have altered the phone’s location for that call in the way Sherman asserted.
The court also concluded that substantial evidence supported the convictions apart from the challenged cellphone records. The victim testified that Sherman threatened her and that she saw him on her porch; an officer observed smoke and a large burn mark on the front door; testing detected gasoline; and a fire investigator concluded the fire was intentionally set. The jury also received an intercepted letter in which Sherman sought to prevent the victim from testifying. Because the Verizon information did not create a strong probability of a different verdict, the trial court applied the correct legal standard and did not abuse its discretion.
Key Takeaways
- New evidence alone does not warrant a new trial under Ohio Criminal Rule 33; the defendant must satisfy all six Petro requirements, including a strong probability of a different result.
- A disclosure identifying a possible cell-site reporting error was not outcome-determinative where the relevant call used the same tower at both ends.
- When substantial independent evidence supports the verdict, newly discovered evidence affecting only part of the prosecution’s proof may be insufficient to establish prejudice.
Why It Matters
The decision illustrates the distinction between obtaining leave to present a delayed new-trial motion and prevailing on the motion’s merits. Even when evidence was unavailable through no fault of the defendant, the defendant still must demonstrate that it probably would change the outcome.
For challenges involving corrected or unreliable digital records, the ruling underscores the importance of connecting the identified technical defect to the particular evidence used at trial and to the verdict as a whole.