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State v. Prater

Court of Appeals of Ohio, Tenth District

June 25, 2019

State of Ohio, Plaintiff-Appellee,
Frederick A. Prater, Jr., Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16CR-0927

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.

          Frederick A. Prater, Jr., pro se.


          NELSON, J.

         {¶ 1} A jury found in 2017 that Frederick A. Prater, Jr. two years earlier had shot at some men and wounded a female bystander. We described the circumstances of that case in our decision of March 13, 2018 affirming his convictions and 23-year total prison sentence for three counts of felonious assault, three gun specifications, and one count of having a weapon while under disability. State v. Prater, 10th Dist. No. 17AP-374, 2018-Ohio-932 ("Prater 1").

         {¶ 2} To give a nutshell of our earlier summary, a man is said to have emerged from a car, thrown a cell phone at people from whom it had been borrowed and who had asked for it back, and then opened fire, striking bystander Stephanie Norvett. Testimony conflicted as to how many shots were fired: one witness heard approximately six shots, one heard two, and one heard one, and while nine shell casings from two different guns were recovered from the scene, eight from the driver's side of the car and one from the passenger's side, the "jury heard testimony that it is possible that the casings recovered at the scene have nothing to [do] with the crime at issue." Id. at ¶ 11, 24.

         {¶ 3} The intended targets could not identify Mr. Prater as the shooter, but two said that the shooter had come from the car's passenger seat. Id. at ¶ 5, 6, 22. Ms. Norvett, who knew the two males in the car but not their female companion, initially identified Mr. Prater as the shooter. Id. at ¶ 6, 8. Months later, she signed an affidavit saying that Mr. Prater was not the shooter, and she later told a detective that she thought that Mr. Prater's companion who had been in the driver's seat had shot her. Then, at trial, she testified that she did not know who shot her, while reconfirming that Mr. Prater had been on the passenger's side of the car. Id. at ¶ 8, 9.

         {¶ 4} Finding, among other things, that there was sufficient "evidence identifying Prater as the shooter," id. at ¶ 22, we affirmed the convictions.

         {¶ 5} Mr. Prater then moved to reopen his appeal, urging that his appellate counsel had been ineffective for not assigning as error the trial court's refusal to delay the trial so as to allow time to hunt down and produce an uncooperative witness and its denial of his two post-verdict motions for a new trial. See State v. Prater, 10th Dist. No. 17AP-374 (Nov. 6, 2018), memorandum decision on application for reopening, at 1 ("Prater 2").

         {¶ 6} We denied that motion with regard to the prong involving missing witness Sherita Carter because "Prater's [trial] counsel did not specifically attempt to proffer her expected testimony other than to say she was the third person [beside the two accuseds] in the car and was 'certainly in a position to see what was going on' ": because it was "not in the record, we cannot consider (and could not, in a direct appeal, have considered) what Carter might have had to say," and "[a]bsent evidence about whether counsel had some idea of what Carter would have testified to, Prater's trial counsel not offering into evidence Carter's testimony does not in and of itself support an ineffective assistance argument." Id. at 5, 8, 9 (adding that "the record on direct appeal does not provide even a clue about what Carter would have said had she testified"). Similarly, we noted that "the denials of the motions for a new trial were not * * * part of the direct appeal [and never were appealed]," so "reopening the direct appeal would not provide us jurisdiction to review the trial court's [summary] denials of these motions." Id. at 11.

         {¶ 7} In sum, we denied reopening because "Prater's arguments about appellate counsel's alleged inefficacy rely on assumptions about the facts of the case that are not in the record available on direct appeal." Id.

         {¶ 8} In the course of our assessment, we elaborated on "further facts" of the matter. "The person in the driver's seat of the car, Isawan Foster, was charged with essentially the same crimes as Prater but was acquitted by the jury. The remaining person in the car was a woman who was not named at trial but who was identified by the name, Sherita Carter." Prater 2 at ¶ 3 (record citations omitted).

         {¶ 9} Both of those "further facts" are significant to the timely petition for postconviction relief that Mr. Prater filed with the trial court on July 5, 2018 and that the trial court denied on October 1, 2018 (after the Supreme Court of Ohio had denied review of Mr. Prater's direct appeal, but before we had denied his application to reopen that appeal).

         {¶ 10} Grounded in claims of ineffective assistance of counsel, Mr. Prater's petition for postconviction relief put forward an affidavit from Ms. Carter dated July 4, 2018 and attesting, among other things, that:

4. At the time of the shooting, I was in the back seat of my car, and Prater and Foster were in the front seat.
5. I had a clear view of all events regarding the shooting, and I was willing to testify that Isawan Foster fired the shots that evening, and Fred Prater did not fire any shots.
6. On more than one occasion during the trial, I spoke by phone with Mr. James Watson [Defendant Prater's lawyer], and told him what I had witnessed and what I was willing to testify about, and that I would show up at trial to give my testimony.
7. I never showed up for trial and I hid so that I couldn't be found by police, because Isawan Foster threatened me * * *.
8. Following conclusion of the trial, I again spoke with Mr. Watson, at which time I explained to him that the reason I did not appear for trial was because of the threats made toward me by Isawan Foster if I testified * * *.
9. I regretted not testifying for Fred Prater because I knew the wrong person had been convicted for what Isawan Foster did, and wanted to make amends by telling the truth as soon as I realized the consequences of my actions.

         Carter Aff. at ¶ 4-9.

         {¶ 11} Ms. Carter's affidavit also attached and reaffirmed a slightly earlier sworn statement, handwritten, dated, and notarized April 4, 2018, recounting that it had been Iswian [sic] Foster who had asked the passers-by for use of their cell phone and who, feeling "rush[ed] * * * to give the phone back," had pulled out a gun and fired against her objections and those of Mr. Prater: Ms. Carter attested that she "just want[ed]" to let Mr. Prater's "lawyer and ...

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