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After witnesses recant testimony, accused drug dealer will get new hearing
ANNIE YAMSON
Special to the Legal News
Published: April 6, 2015
A panel of judges in the 2nd District Court of Appeals recently ruled that a defendant who was sentenced to 28 years in prison on drug charges was entitled to a hearing on his petition for post-conviction relief in the Clark County Court of Common Pleas.
The defendant, Robert Mackey, filed a brief with the 2nd District court after the Clark County court denied his petition to vacate or set aside judgment.
Mackey was convicted on several charges in September 1998 including drug trafficking with a schoolyard specification, possession of drugs, having weapons under disability and possession of criminal tools.
The 28-year prison sentence was ordered to be served consecutively to a 10-year sentence Mackey was serving in another case, for a total of 38 years in prison.
After his direct appeal was dismissed, Mackey filed an untimely petition for postconviction relief, requesting that his conviction be set aside.
According to Mackey, he was unavoidably prevented from securing affidavits from two witness who testified against him at trial.
In the affidavits Mackey attached to his petition, the witnesses, Cairo Buggs and Heather Peterson, recanted their trial testimony against Mackey.
Mackey’s petition, however, was dismissed with the trial court noting that both Buggs and Peterson had prior convictions for trafficking in drugs.
The reviewing panel of judges disagreed with the trial court’s reasoning. It found that Mackey presented evidence that he was prevented from locating Buggs and Peterson and he was entitled to a hearing on the matter.
“Mackey asserts that he and his family were unable for many years to locate and gather information from Buggs and Peterson, who were both drug abusers and were in and out of jail,” Judge Mary Donovan wrote on behalf of the court of appeals.
Mackey claimed Buggs was serving a federal prison sentence and neither he nor Peterson would speak to him out of fear of the police.
Specifically, Mackey stated that Peterson refused to speak with him because she had been threatened by police authorities and feared that her children would be taken away from her.
“Mackey’s counsel was able to eventually contact Buggs while he was incarcerated and was able to procure a written statement in which Buggs recanted his testimony, but he was unable to get the document notarized while in prison,” Donovan wrote.
As soon as Buggs was released from prison, he officially recanted his trial testimony against Mackey.
Mackey also noted that he could not gather information from Buggs and Peterson until they decided to freely give it.
“Pursuant to R.C. 2953.23(A)(1)(a), we find that Mackey’s affidavit established that he was entitled to a hearing in order to establish that he was ‘unavoidably prevented’ from the discovery that Buggs and Peterson recanted their incriminating trial testimony against him,” Donovan wrote. “Accordingly, the trial court erred when it overruled Mackey’s petition for postconviction relief without a hearing.”
The matter was remanded to the Clark County court with Presiding Judge Jeffrey Froelich and Judge Mike Fain concurring.
The case is cited State v. Mackey, 2015-Ohio-899.
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