Petro factors in Ohio

2024We find the case at hand similar to State v. Irwin, 184 Ohio App.3d 764 , 2009-Ohio-5271 , 922 N.E.2d 981 (7th Dist.), in which the court found that a confession was newly discovered evidence that satisfied all six of the Petro factors.

2024We find the case at hand similar to State v. Irwin, 184 Ohio App.3d 764 , 2009-Ohio-5271 , 922 N.E.2d 981 (7th Dist.), in which the court found that a confession was newly discovered evidence that satisfied all six of the Petro factors.

2023Giancola v. Azem, 153 Ohio St.3d 594 , 2018-Ohio-1694 , 109 N.E.3d 1194, ¶ 14-16 .

2023Giancola v. Azem, 153 Ohio St.3d 594 , 2018-Ohio-1694 , 109 N.E.3d 1194, ¶ 14-16 .

2021Warren No. CA2017-07-102, 2018-Ohio-1350, ¶ 9 (applying the Petro analysis). {¶109} Young urges this court not to engage in a Petro analysis, but rather to apply a "less stringent" test as the newly discovered evidence allegedly introduces an "untried issue." Citing State v. King, 63 Ohio App.3d 183 (6th Dist.1989), Young argues that to be entitled to a new trial under Crim.R. 33(A)(6) he need only show that (1) the new evidence represents a material issue that would likely change the trial outcome or (2) undermines the reliability of a key witness that would likely change the trial outcome. {

2021Warren No. CA2017-07-102, 2018-Ohio-1350, ¶ 9 (applying the Petro analysis). {¶109} Young urges this court not to engage in a Petro analysis, but rather to apply a "less stringent" test as the newly discovered evidence allegedly introduces an "untried issue." Citing State v. King, 63 Ohio App.3d 183 (6th Dist.1989), Young argues that to be entitled to a new trial under Crim.R. 33(A)(6) he need only show that (1) the new evidence represents a material issue that would likely change the trial outcome or (2) undermines the reliability of a key witness that would likely change the trial outcome. {

2020Lorain No. 12CA010211, 2013-Ohio-2785, ¶ 14 . {¶25} Here, there is no dispute that Ms. Poff failed to comply with the trial court’s March 26, 2018 order granting Petro’s motion to compel discovery.

2018Cuyahoga No. 104810, 2017-Ohio-7164, ¶ 21 . {¶26} In denying Gilbert’s motion for a new trial, the trial court set forth findings of fact and conclusions of law, which included the following analysis and application of the Petro factors: The recantation presented herein arguably meets all [the Petro factors]; nevertheless, upon full review and consideration of all the evidence before it, the court finds that the recantation of both Alan Davis and Jamie Byrd is not sufficiently credible to justify ordering a new trial.

2018Cuyahoga No. 104810, 2017-Ohio-7164, ¶ 21 . {¶26} In denying Gilbert’s motion for a new trial, the trial court set forth findings of fact and conclusions of law, which included the following analysis and application of the Petro factors: The recantation presented herein arguably meets all [the Petro factors]; nevertheless, upon full review and consideration of all the evidence before it, the court finds that the recantation of both Alan Davis and Jamie Byrd is not sufficiently credible to justify ordering a new trial.

2018Accordingly, the defendant’s Motion for New Trial must be, and hereby is, OVERRULED. [Cite as State v. Gilbert, 2018-Ohio-3789 .] Put simply, the trial court found that although Gilbert’s “newly discovered evidence” — Davis’s and Byrd’s recantations — “arguably met” the Petro factors, it found that that evidence did not warrant a new trial because those recantations were not credible. {¶27} Gilbert argues that because the trial court found that the Petro factors were satisfied, the trial court should have granted his motion for a new trial and left the credibility determinations to the jury.

2018Accordingly, the defendant’s Motion for New Trial must be, and hereby is, OVERRULED. [Cite as State v. Gilbert, 2018-Ohio-3789 .] Put simply, the trial court found that although Gilbert’s “newly discovered evidence” — Davis’s and Byrd’s recantations — “arguably met” the Petro factors, it found that that evidence did not warrant a new trial because those recantations were not credible. {¶27} Gilbert argues that because the trial court found that the Petro factors were satisfied, the trial court should have granted his motion for a new trial and left the credibility determinations to the jury.

2014Failure to elicit this information at the time does not make it newly discovered. {¶39} Mr. Schlee cannot meet the 6th requirement of the Petro test necessary for granting of a new trial: the affidavits submitted in support of the instant case are not new evidence, but merely impeach or contradict former evidence. {¶40} Mr. Schlee relies heavily on two cases: State v. Walden, 19 Ohio App.3d 141 (10th Dist.1984); and State v. McConnell, 170 Ohio App.3d 800 , 2007-Ohio-1181 (2nd Dist.) Both are distinguishable.

2014Failure to elicit this information at the time does not make it newly discovered. {¶39} Mr. Schlee cannot meet the 6th requirement of the Petro test necessary for granting of a new trial: the affidavits submitted in support of the instant case are not new evidence, but merely impeach or contradict former evidence. {¶40} Mr. Schlee relies heavily on two cases: State v. Walden, 19 Ohio App.3d 141 (10th Dist.1984); and State v. McConnell, 170 Ohio App.3d 800 , 2007-Ohio-1181 (2nd Dist.) Both are distinguishable.

2014Failure to elicit this information at the time does not make it newly discovered. {¶39} Mr. Schlee cannot meet the 6th requirement of the Petro test necessary for granting of a new trial: the affidavits submitted in support of the instant case are not new evidence, but merely impeach or contradict former evidence. {¶40} Mr. Schlee relies heavily on two cases: State v. Walden, 19 Ohio App.3d 141 (10th Dist.1984); and State v. McConnell, 170 Ohio App.3d 800 , 2007-Ohio-1181 (2nd Dist.) Both are distinguishable.

2014Failure to elicit this information at the time does not make it newly discovered. {¶39} Mr. Schlee cannot meet the 6th requirement of the Petro test necessary for granting of a new trial: the affidavits submitted in support of the instant case are not new evidence, but merely impeach or contradict former evidence. {¶40} Mr. Schlee relies heavily on two cases: State v. Walden, 19 Ohio App.3d 141 (10th Dist.1984); and State v. McConnell, 170 Ohio App.3d 800 , 2007-Ohio-1181 (2nd Dist.) Both are distinguishable.

2011Corp. [C.A.2, 1941], 116 F.2d 926, 928 ). {¶38} The concept of justifiable ignorance underlies the Petro requirement that the newly discovered evidence be “such as could not in the exercise of due diligence have been discovered before the trial.” We have acknowledged that the concept of “due diligence” has been “somewhat accordion-like” in its application, “where one court might find expansively that a defendant acted with due diligence, while another court might restrictively deem that the defendant had not.” Id. at ¶52.

2011To the extent that he now has additional statements that he did not have in his possession prior to trial, we find that the trial court reasonably concluded that this evidence is duplicative or cumulative to evidence already in Brooks’s possession, or that it could have been discovered with due diligence. {¶ 45} Additionally, we find that the trial court reasonably denied leave to file a motion for a new trial because the granting of such leave would have been futile: Brooks cannot prevail on a Brady claim for a new trial or satisfy the Petro standard for a new trial based on the alleged “newl

2011To the extent that he now has additional statements that he did not have in his possession prior to trial, we find that the trial court reasonably concluded that this evidence is duplicative or cumulative to evidence already in Brooks’s possession, or that it could have been discovered with due diligence. {¶ 45} Additionally, we find that the trial court reasonably denied leave to file a motion for a new trial because the granting of such leave would have been futile: Brooks cannot prevail on a Brady claim for a new trial or satisfy the Petro standard for a new trial based on the alleged “newl

2008"The decision to grant a motion for a new trial is an extraordinary measure that should be used only when the evidence presented weighs heavily against the conviction." State v. Samatar , 152 Ohio App.3d 311 , 2003-Ohio-1639 , ¶ 35 , citing State v. Otten (1986), 33 Ohio App.3d 339 , 340 . {¶ 22} Applying the Petro test to the present case we agree with the state's assessment that the second (discovered since the trial), third (could not have been discovered until after trial), and fifth (not merely cumulative) prongs have been met.

2008"The decision to grant a motion for a new trial is an extraordinary measure that should be used only when the evidence presented weighs heavily against the conviction." State v. Samatar , 152 Ohio App.3d 311 , 2003-Ohio-1639 , ¶ 35 , citing State v. Otten (1986), 33 Ohio App.3d 339 , 340 . {¶ 22} Applying the Petro test to the present case we agree with the state's assessment that the second (discovered since the trial), third (could not have been discovered until after trial), and fifth (not merely cumulative) prongs have been met.

2008"The decision to grant a motion for a new trial is an extraordinary measure that should be used only when the evidence presented weighs heavily against the conviction." State v. Samatar , 152 Ohio App.3d 311 , 2003-Ohio-1639 , ¶ 35 , citing State v. Otten (1986), 33 Ohio App.3d 339 , 340 . {¶ 22} Applying the Petro test to the present case we agree with the state's assessment that the second (discovered since the trial), third (could not have been discovered until after trial), and fifth (not merely cumulative) prongs have been met.

2008"The decision to grant a motion for a new trial is an extraordinary measure that should be used only when the evidence presented weighs heavily against the conviction." State v. Samatar , 152 Ohio App.3d 311 , 2003-Ohio-1639 , ¶ 35 , citing State v. Otten (1986), 33 Ohio App.3d 339 , 340 . {¶ 22} Applying the Petro test to the present case we agree with the state's assessment that the second (discovered since the trial), third (could not have been discovered until after trial), and fifth (not merely cumulative) prongs have been met.

2005In State v. Petro (1947), 148 Ohio St. 505 , syllabus, the Ohio Supreme Court held: To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradic

2005In State v. Petro (1947), 148 Ohio St. 505 , syllabus, the Ohio Supreme Court held: To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradic

2005Carr, citing State v. Schiebel (1990), 55 Ohio St.3d 71 , paragraph one of the syllabus.

2005Carr, citing State v. Schiebel (1990), 55 Ohio St.3d 71 , paragraph one of the syllabus.

2002Johnston, supra, at 60 .

2002Johnston, supra, at 60 .

2000Id. at 167 (citation omitted.) This court recognized this same principle in Ham v. Park (1996), 110 Ohio App.3d 803 , 809 , and many other cases which have followed Heard . 9 Ham quotes the leading treatise cited in Civ.R. 41 (B) (1) dismissal cases for this precise proposition.