from the Franklin County Court of Common Pleas C.P.C. No.
O'Brien, Prosecuting Attorney, and Michael P. Walton, for
Frederick A. Prater, Jr., pro se.
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
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
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
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
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
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
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.
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 ...