IN 'I`€3^ ^^ COURr OF OHIO

s'rATF z)'` riT-,TC

?'lainttff ^Appellee,

VS.

MC>FINIF BLAK r.LY , ^7R. p

Def^^° ^an^o-A^^e^I^..an,U.

A&

On ^ppeal from the LucasCoi)nt;y Court of Apr^^als,S:xf;h ^ppel1^t(,'^ D"Stri.Ct('Iarch 2 zn, 2013)

C® A..No. L-17- 10-14T.,- z 2-7.P; 7/ 4

iMEMR^^ ^tV SUPPO^' OF MRTMI=QM OFAPPELLANT F-MENE 13TAKF-L,Ya JR.

^^ ^^^^Y JR., #456-466AIlen ^:'orrectz.onal Tnc:ta.tuti ;nP.C. BC^^ 4501T ima, Ohio 41--802-4501.

'PR© SP

JIJIJA R. BATESLucas County Prosecut.or700 ^^^^is Street TTo3.eclcag Obio 4362.4

CCuuNSF.,L FOR TFF ?1^PETUE, STIATE OF Ou-jQ

I

^ _.. . ., ...

3 _:U, . . ,^ .

TABLE CO_ ENTS

.e

EXF^^^NAT^^^ OF WRY THIS IS ^ ^^SE OF PUBLIC OR GREATGENERAL INTEREST AND II^^`JgJLVF`S A SUBSTANTIAL CCN?S`£TT117'I'i_C`^TALQCTES`I'TOF e...®..®..........®.®.....®......®.®............e.sme

STATF',IF:NT OF THE C^SF .^^ FACTS . . . . ® . . . . . . . . . a . . . . . . . . e . ® . ® . . 2

A.RGUMr,N'I' IN7 SL^P0,TZI.' OF PROPJSTTTC)N^ OF Td41,4 . . . . W . b . O S . . 8. . . . . . . .,

pro ^atic^ra of Law Nsa. T. The Sixth District Court ofAppeals failure to review the record on ^ppeal prejudiceappellant and deprived him of his right to due p ss..® ^

EEo ttion of Law 'No® Il: ^^ther the trial. cou^^ ^ ^failure to review the Docket to e^^^^^^^ if the facts^^^ev-ant to Cause as asserted by appellant in P,ffic^avi^in his Crim®R® 33 Motion violated his absolute right toDue P ss of Law ® .n.®.a®............e........®..®..m.. 4

Prq a ^^^ of Law Ntcaw ITT: Whether uncavering^regiouspr torfal® xlis-conduct by the state of ohia^ after trialand appeal 'have expired can be asserted as cause in^ppe1lant @ s inability to discover said cI,aim . . a ® . s . . . . . . 6

C^MC'LI;^^^ON . ..........®.e....mm....®..m .....................®.a 7

CERTIFICATE nF SF'VV7:CE . . . . ® . . . . . ® . . . . . . . . . . . . . . . . . . . . . . . . . Q o . 7

AT^?F^-J7I^ ^^?,^x. Pa^^

^ )PUSTO?r! 2VV.") T7O(7-fT''T F't`I R-y of tbe Lucas CountyCourt of ^Ippea 1 s (ntos . ;.a- :t 2.:-MW ^ & 1,12 -? `;74)^^^^e ',r11arcli 22, 20 1 3 . . . . . . . . . ® . . . . . m . . . . . . . . . . . . . . . ® . . . E

i

INATItN OF WHY THIS IS A CASF, OF ^FAT PMLICA^.^ G ISES A

SUBSTANTIAL I ONT

This i.rr^tant case involves tt€ree critical issticas which affects the

^.7ub,3.ic^s interest ar€c3 future appel1ant'^ right to Proc-,eciural Da.cN Process

of L^aw as provided by the Fourteenth Amendment of t'he United States

C°c}i^^tituticsra. Facb of which requires this Court° s consideratiesn:

(1) TArnetb^^ tbe Sixt^ District Appea1_s Ccaurt's failure to review trie

record prejtzdice appellant on appea1, iar€6 violated 'his ragl€t to c1^e process

of Iawe Cuaranteed by ar€o' th^ougb t-he 14th Amendment crf the LTnit;e^^ -qtates

Constitution; (2) Wh^t"her tbe Tria3. Court$s Fai3..ure to review t"he c.c€cket

to dkc-terrr3ine facts relevant to Cause as asserteci by appellant in Affic,avit

in his Criminal P€aie 3u M€^tion vi^^ated his absoI€^^^^^ right to TiticA F-rocess

of La,^AyP (3) Whether an Independent Discovery of e,rcc,i.c^^s prcsecutori.al

riiisccrnduct by tbe state of csbi.a after tria1.. and appe-al bave expired can be

asserted as cause in ^^^^llanf °s inability tc) eliscc^^^ the elaim®

in this case, tbe court of appeals provided procedural due process

violation of ars^ellanta s claz.m. ^^^ ^ppc^al when it recast ^^pel3_ant's €€^tion

which provided appellant i-iea apparent opport.ur ► ity to arque bis claim unc^er

the star€dard, judged by the appellate court® The appellate court has

th^refc^^e placed upon the appellant the E-;urden of Di^scoverr.ng ^^e

Fcjrp.glous M.i.scoISc3uct of Fraud by tbe- prosecuting attorney at his

tri-al..® The appellate court°s recasting of tb.e ("rirr±m?'. to

cCI I.s'T;y^e 33(.^)L6l t1jt^^.2C5I1. t^^^.C^6JE?^ ^:^^^c^i; co4.+.^t to invalidly c.^y' rtc3Y.iir^.rd^u'

not. relevant tcr tbe actual ^^gu;?ier€t presented by tb^ ^^ pe^ita.nt. to tb_e.

waixt^^ Tj'istrict; Appeals Cour't®

_1 -

The decision of tte court of appeals rrccedural].y vialated appeIla.n#:,'s

ri^ht to due pxcscess of law c,n a.ppeal, and the appellant bas not had this

issues properly adjudicated, particular7.y where the appellate court b:.^s

p^^^^nte<, z.t"s opinion as being one adjudicated on the Nerits. The

Ccr^stitution of the L:^nitec? States provided that all nefeneant`s sb.al1 k^e

entitled to Due Process of Law in the Court of Idaw® It baw not been so in

this case® These facts and all facts attar'hoc: demand this courts imtadiate

attention as the Court of Appeals actions affects the judicial credibility

of the system set in place to provide all people of t-he C.?ritee? States Due

Process of I.aw.

STATUCRM CNF ITIFFEE C..^^^ ANMD F&CTS

"?`h.e appellant was convicted csri a singie count of murder with a

firearm speci.f.ication (a viotat.lc:m of R.C. 2902e02(A) witb an

R.C. 2941.145 sperz.fication)a`.tt'ho conviction was based on aguil.ty verdict

returned at trial by a jury in the Lucas County Cot^rt of ^ounan Pleasa The

trial court filed it®s original julgmen+' of conviction and sentence on

September 2, 2003. On r_a 1 r. eot appea 7 s the Sixth t .̀^i. str.`i, o't Court of Arpeals

affirmed the conviction in Sta^e-va-Blake1yP 6th Di.ste No® L-03-I275p

2Clu6-Ohzo--185a

In this appeal, the a.ppellant is cha7.lenging his uncovering the

prosecutors deliberate misconduct and fraud incurred upcan. the Trial Court

in his trial in 2003. 7be facts relative to the claim in question was

uncovered after th^ tiine for trial and ^ppea.l had long passec3a Bowcvere

the egregious act by the state violated the appeilant's ric^bt to due

process and his rigbt to a fair ^ria3.®

-2-

The appellant t^^rein filed a motion for leave to file a delayed

notion a.'r^^ a new trial pursuant to Cri.moR® witb

affidavit asserting to the facts. The court of appeals (1) Recast

appellant's motion to represent a CrimmR^ ??(A)(..^^); (2) Pcund that the

state did not provi6^ false evidence tc) tbe trial- court; (3) No evzcier^^^

^as presented in support of the notiona (4) appellant's motion was

untirieIyP (5) A^.^p^liant °s affidavit presented no pra.ne facie evidence of

unava idabI e delay.

7te court of appeals erred in tbat the burden of proof was p0ce^ on

the appellant as to when he was to discover the state a s use of fraud and

misrepresentation to incur the trial court to make a decision it could not

bave otberwi^e have made. AlsoQ that appellant's ^fficavit did not provide

the court with evidence (strong) enough to aov^^.^ the trial court to ^evi.ellf

the 'Docket' to see if subpoenas were actually issue in the trial of

appellant as asserted to by the state of l.hif7 a:%1z ` v= tness sworn testitrortya

Tr^ support of these issues, the appellant presents the following

argument.

A Iim sRoppt7RT C3F PROPOSITIONS OF IAAW

Prapositie^ of lavw Dka® I a The Sixth District Court of A ppealsfailure to review the record oo appeal prejudice appellant anddeprived him his rigbt to due process®

The Sixth District Appeals Court in it's Decision and Judcrmerat Entry

[P® G; Stated: "We identified relevant evidence an the issue in Blakely I:

e„I`hree subpoenas were issued , dated a follows : (1) served July 7, 2003, to

appear July 8, 2003; (2) served August 4, 2003, to appear August 18, 2003;

-3-

(3) served August 20, 200?, to appear Auga.zst 25, 2003." ^owe^^er^^ the the

record in this instant case is in conflict with the appellate court

findings.

In State va Kp-airns (1984), 9 Ohio St.3d 228, this court helde `°A

prosecutor who could demonstrate that subpoenas were issued but could not

demonstrate that subpoenas were return8d had not off^re,'.1 suEficient proof

to allow the use, of the ur^availab1o witness prior testigoonyaf' Tda at 231--

232e

The facts re1evan-It to this court`s b.oiding in Keairns are seriously

relevant here, that- the appeals ^^ourt, could not have reviewed tne record

to determine if (any] subpoenas were [eve^^] issued in t.'ne instant

casee The appellant has uncovered f^cts through a mere scotarin, of the

D^cXet in 'his case. I'he record actually reveals, tbe state's witness was

[not] ^ub^ena to appear and tl-ie trial couxts rtiIirscs was based on the fraud

perpetrated uc-on it, by the prosecuting attorney, arze the Sixth District

Appellate Court's ruling is as thcaugab the appellant lias not had an dppea1®

7bere that, court FaiI.ed to rcvi^^ actual record of this casee Had it

done so, it would have revealed subpoenas were never issued as decided by

the appeals court in it'sDec:isz.on and Judgment Frttryo

EK2p2Ejtion of Law No. 11: Whether the trial court's failure toreview the docket to determine the facts relevant to cause asasserted by appellant in affidavit in his Crim.R. 33 motionviolated his absolute right to Due Process of Law.

-4-

App8l^ant file his motion for leave to file a delayed Crirrre?2a 33(A)(1)

(2),Q)(5) for a New Trial relevant to the facts in discovery by appellant

independently of court appointed counsel an appeal ar€f at trial, in that

the prosecutor for the state of cbica c'=e1i'erate1y misled the trial court

in a.t's presentation of evidence relevant to a state key witness

unavailability, to assure the use of t^^ prior testimony of the witness in

question. Pursuant to W?dO® 8040)(5).

Appe4_^ ant = i4 ^d an affidavit asserting to the truthfulness of the

Ea.cts presented in bis Crirr9R. 33 motion:, and relevant to the claims

presentedoThe Comvon Pleas Court merely denied appeIZant Bs motion without

findings of fact® The Appeals court determined "appeI.lanv presented no

evidence in support of his motion that was not presont®cz at trial. 7he

only evidentiary material submitted by appellant in the court in support

of his motion for leave of court to file a delayed motion for a new trial

was bis own affi?avit,°" [see, Decision and Judgment Fntrgrs P.9 at 1I5--16le

However, the Camffion Pleas Court failed to review the actual Docket to

determine if subpoenas has been issued in this case at any times The issue

presented by appellant can only be d€=^annir^^d if it is shown that

subpoenas were in fact issued. There is no proof available outside the

record to determine the facts relevant to the truth of the matter, oLher

than the transcripts provided to the court, and the Eccket of Criminai.

Case Nom CR02- ?J89. Facts which the Car?mon Pleas court or the Sixth

District Appellate Court failed to consider.

Appellant ^be^eEore ask this court to finally determine if his

absolute right to procedural due process of law bas been violated at trial

-5-

and on appea10

^_rmitic^n ^^ „La^ No- III d ^^th^ ^^meri^tg egr^^.c^^prosecutorial misca^duct by t,^ state of ohgas a€tteertrial and appeal bave expired can be asserted as cause in

appellant° s inability to discover tte claim.

Appellant presented ha.s actual Notion For Leave To File a Delayed

Motion For A New Trial pursuant to Crim&s 33 (Q I 2 : F '^.a The

appeals court reviewed appe^lantss instant appeal pursuant. to

CrimoRb 33(Aj{6I-

'I'h^ Sixth District Apr;eIlate Court ruleda "We agree with the state

that leave to file was properly denied because appellant presented no

evidence in support of his motion that was not presented at tr"ial&'° fse°,

I:eci.sion and Judgment Fntry, Pe9, T 151

Herein requiring this cotart ° s guidance on a Fact in Dispute relevant to

thatcourt`s dect s aon m

C'.rim<Ra 330)(6) states in partr "'S'he rule applies "when new evidence

material to the defense is discovered which the defendant could not with

reasonable diligence have discovered and produced at ^^ialm°" Which

appellant asserts is the case here® Appellant discovered the state of ohio

presented staterents and sworn testimony as to process and service upon a

state°s key witness to secure her presence to appear at traa?, The record

is clear on tht fact® boweverF the actual record cannot support a showing

that any subpoenas were ever issued for this wif:nessa

Tberefore, appellant asserts be has :net the requisite requirements of

Cri®Ra 33(.Ajj6_}_, in that, where the actual subpoenas are not apart of the

record, the representation of any subpoenas npon this witness violated

.^^_

^^pellant's right tcj procedural 6ue process if tbe court rriadn a deciEjc'rE

it, would igcst bave ot.Y^^r-wzs^ ^ave. made 'because of t.ne misrepre^^entatzon®

^^^ecificalIyp the court relied on t'he aftidavi,b being the or51y

evidence sent to the Common Pleas Court in support of t7is motion for a new

^rial. The affidavit is the sworn sf.^tetnent:: t^^f tbe appellant that tbe,

facts are reliable and truea

Appellant arqt^^s the c?aim cannot be adj:adic^atec a claim without

first discovering if the claim tave any merit. l.`ne only require?rent; to

tarin.9 fact to the claim i^s to review the tr.'anscri^;ts and t'r^e Docket which

reveals tqe actual deliberate misrepresentation urdon the trial c°ourt.3

This court is askec^ ^^i determine if sut3pcsenas actually were seret; to

secure the witness ana if misrepresentation ca^ciarred.

CONCLUSION

r^^^ t-he reasons discussed aossve, t.bis case involv,^,s matters of ptxbli.c

and great general in.terest ard a substantial constitutional questions.

Appell.ant request t-hiS Court accept jurisdiction in tbis case so tba^

tbe 1-:7lNCa%'tat"1t issues ,L'7reSF?rItF_'Ci will reviewed for t^"I-L-' first Ic',lnte on {':he

Fx1erl. tS a

Respectfully

^ ^ e._^ •^` '^Ll 'Cn^^ffi^l^p

Allen CatrectxonaT Tris^^^^^ionP® C? o BC7Y 4501Lireao nbio 45R02

^-^"^ •'^C'71.'^ ^`- ^,^'^^,^ T,.^r ^' 1`, PRO SE

-7-

CERTIFICATE OF SERVICE

Icerti.fy that a true ccgy of the foregoing MFMORANDrM TN Si'PPC?R'T` OF

J'JRTEDxCT'IC,N has been sent ty^ regular U.S. mail to Julia vs Patesp Lucas

County Prosecuting A^tysB 700 Adams Stn, Toledo, Ohio 43624, on thisf^ r!

day of April, 2013a

RespectFully su^mittec3,

^t.z ne BT ake^, y F ^"^® ^f^ ww-^6Q^"ttl^^] ^«^'.`4^.Q^a^^^.M ^^'^^„(^^

P.O. FOX 4501Lima, Ohio 45802

D^FENUANT-^^PFLI^AN'I`, PRO SE

_R_

^ 00R T ^^ ^^1APPfALS

1#13 MAA 22 ,q 8, ob

f^^ 7^'Ltrin 'fLTLP^^'^

^COUn'TS

State of Ohio

Appellee

V.

Eugene Blakely, Jr.

Appellant

IN THE COURT OF APPEALS OF OHIOSIXTH APPELLATE DISTRICT

LUCASCOUNTY

Court of Appeals Nos. L-12-1034L-I2-1074_-_

Trial Court No. CR0200203089

DECISION AND JUDGMENT

Decided: MAR 22 201 3

Julia R. Bates, Lucas Cf>unty Prosecuting Attorney;-andEvy M. Jarrett, Assistar-;t Prosecuting Attorney, for appellee.

Eugene Blakely, Jr., pro se.

^*^**

PIETRYKOWSKI, J.

f¶ 1} We consider the consolidated appeal of appellant, Eugene Blakely, Jr., in

appellate case Nos. L-12-1034 and L-12-1074. Both appeals relate to appellant's

conviction on a single count of murder with a firearm specification (a violation of R.C.

2903.02(A) with an R.C. 2941.145 specification). The conviction is based upon a guilty

1.

E®^ ^ ^^ ^EDMf^^ ^ ^ ^02

verdict returned at trial by a jury in the Lucas County Court of Common Pleas. The trial

court filed the original judgment of conviction and sentence on September 2, 2003. On

direct appeal, we affirmed in. State v. Blakely, 6th Dist. No. L-03-1275, 2006-Ohio-185,

appeal denied, 109 Ohio St.3d 1495, 2006-Ohio-2762, 848 N.E.2d 858.

J¶ 2} Subsequently, the trial court issued a nunc pro tune judgment modifying the

original judgment to state the manner of conviction. We dismissed an appeal from entry

of the nune pro tunc judgrhent in State v. B.lakely, 6th Dist; No. L-10-1311, 2012-Ohio------- ------4190. : -- --- -- -^_

{¶ 31 In these appeals, appellant challenges the trial court's denial of his Crim.R.

33(B) motion for leave to file a delayed motion for a new trial. The motion is based upon

a claim of newly discovered evidence. Appellant filed the motion on July 21, 2011. The

trial court denied the motion in a judgment filed on January 11, 2012. Appellant appeals

that judgment in case No. L- 12-1034.

1¶ 41 Appellant also filed a motion requesting the trial court to issue findings of

fact with respect to the January 11, 2012 judgment denying his motion for leave to file.

The trial court denied that motion in a March 6, 2012 judgment. Appellant appeals the

denial of the motion for findings of fact in case No. L-12- i 074.

{1-[ 5} Appellant asserts four assignments of error on appeal:

Assignment of Error No. I. The Lucas County Court of Common

Pleas erred to the prejudice of appellant when it failed to find appellant

unavoidably prevented from filing his Crim. R. 33 motion to the trial court

2.

pursuant to Crim. R. 33 (B) where the facts as presented were newly

discovered and newly presented by appellant after the Crim.R. 33 deadline.

Assignment of Error No. 11. The Lucas County Court of Common

Pleas abused its discretion and erred to the prejudice of appellant when it

failed to allow appellant to be present in the hearing held on his motion for

leave to file a delayed motion for a new trial where appellant has clearly

shown prosecufiorial misconduct.

Assignment of Error'No. 111. The,Lucas County Common Pleas

Court erred to the prejudice of appellant and abused its discretion in failing

to allow appellant to be present at an evidentiary hearing which he would

have shown trial counsel was wholly ineffective and failed to investigate

the prosecution's claim in use of subpoena process.

Assignment of Error No. IV. The Lucas County Court of Common

Pleas' ruling on appellant's motion for leave to file a delayed motion for a

new trial was arbitrary and unreasonable to the prejudice of appellant where

the court failed to refer to the actual (full) record before denying his claim.

Crim.R. 33

{$ 61 Under Crim.R. 33(A)(6), a motion for a new trial may be granted "[w]hen

new evidence material to the defense is discovered which the defendant could not with

reasonable diligence have discovered and produced at trial." Crim.R. 33(B) sets time

limits for filing motions based upon newly discovered evidence:

3.

Motions for new trial on account of newly discovered evidence shall

be filed within one hundred twenty days after the day upon which the

verdict was rendered, or the decision of the court where trial by jury has

been waived. If it is made to appear by clear and convincing proof that the

defendant was unavoidably prevented from the discovery of the evidence

upon which he must rely, such motion shall be filed within seven days from

an order of the court finding that he was unavoidably prevented from

discavering the evidence within the one hundred twenty day period. I

Crim.R. 33(B). (Emphasis added.)

{¶ 7}. The jury verdict on which appellant's conviction is based was returned on

September 2, 2003. Appellant filed his motion seeking leave of court to file a delayed

motion for a new trial based upon newly discovered evidence on July 21, 2011more

than seven years after the jury verdict.

Evidence at Trial

{1 8} Appellant's first trial ended with a hung jury. Camille Crawford was a key

prosecution witness against appellant in the first trial but failed to appear to testify at the

second trial. At the second trial, the court permitted the state to read into evide:nce the

transcript of Crawford's testimony at the first trial. The court ruled that the testimony

was admissible under Evid.R. 804(B)(I), a hearsay exception.

{¶ 9} Crawford's testimony was central to the prosecution's case against

appellant. We summarized Crawford's testimony in appellant's direct appeal:

4.

Crawford's admitted testimony contained the following facts:

Crawford had been an acquaintance of appellant for several months when,

on the night of August 29, 2002, at approximately 2:55 a.m., she called

appellant to pick her up for a ride. He did so shortly after her call, and

together they drove to the Weiler Homes. Crawford testified that appellant

then left her alone for approximately three to four minutes; during those

minutes, she heard five or six gunshots. Shortly after the gunshots,

appellant ran back to where Crawford vvas sitting outside a Weiler Homes '

building. She°said appellant had a silver gun in his hand, and was

repeating, "come on, let's go, let's go, we got to go." Crawford then left

with appellant in his car, and appellant took her to her home, dropped her

off, then returned after approximately an hour. When he returned, he told

Crawford that he had killed McMillan, because he "owed him"-for what,

Crawford was unsure. A few days later, appellant telephoned Crawford

and told her that he was in Chicago. Craviford contacted police

approximately one week after the shooting. Blakely I at T 2I .

{¶ 10} The hearsay exception under Evid.R. 804(B)(1) is limited to circumstances

where the declarant is unavailable to testify. Evid.R. 804(B). Evid.R. 804(A) provides a

series of definitions of "unavailability" for purposes of the rule. One definition is

provided under Evid.R. 804(A)(5):

5.

(A) Definition of unavailability

"Unavailability as a witness" includes any of the following situations

in which the declarant:

(5) is absent from the hearing and the proponent of the declarant's

statement has been unable to procure the declarant's attendance (or in the

case of a hearsay exception under division (B)(2), (3), or (4) of this rule, the

declarant's attendance or 'testimony) by process or other reasonable means.

11111 The state argued at the second trial that Crawford was unavailable as a

witness despite efforts to procure her attendance to testify by subpoena and by other

reasonable means. We considered the issue in the direct appeal. We recognized in

Blakely Ithat appellant disputed that Crawford was unavailable under Evid.R. 804 and

we considered whether the prosecution demonstrated a reasonable good faith effort to

secure her presence at trial. Id. at T 32. We identified relevant evidence on the issue in

Blakely I:

Three subpoenas were issued, dated as follows: (1) served July 7,

2003, to appear July 8, 2003; (2) served August 4, 2003, to appear

August 18, 2003; (3) served August 20, 2003, to appear August 25, 2003.

A material witness warrant for Crawford was requested and issued on

August 20. Appellant argues that because the subpoenas were issued to

Detective Quinn, instead of to Crawford directly, and because the state

6.

failed to serve either the August 25 trial subpoena or the material witness

warrant upon her, the state failed to act "with diligence" to secure her

attendance. We find this argument without merit.

Quinn testified, under oath, that he had served the subpoena issued

August 4 upon Crawford, and had spoken to her, and she had promised to

attend the August 18 trial. However, she did not attend, and the trial was

continued to August 25. Quinn then testified that he was unable to serve

that subpoena upon Crawford, despite repeated visits to her residence;

during that time, he spoke to her twice by telephone, and she had verbally

promised to testify at the August 25 trial. On August 20, notified of

Quinn's unsuccessful efforts to locate Crawford, the prosecutor requested

the court to issue a material witness warrant to secure Crawford's

attendance, and said warrant was in fact issued that same day. Quinn

testified that he repeatedly attempted to serve that warrant and was

unsuccessful in locating Crawford. He and other detectives also attempted

to locate Crawford at places other than her residence, such as hospitals and

the coroner's office, and also contacted. Crawford's known acquaintances

during their search. Id. at 133-34.

I¶ 121 We held in Blalcely I that the trial court did not err in admitting Crawford's

prior testimony (testimony in the first trial) at the second trial pursuant to Evid.R. 804,

due to evidence that subpoenas were issued to secure Crawford's attendance to testify

7.

and the testimony by Detective Quinn of efforts undertaken to locate Crawford. Id. at

¶ 35.

{¶ 13} Appellant argues under Assignment of Error No. I that he discovered new

evidence demonstrating that the state failed to meet its burden of showing unavailability

of Crawford to testify under Evid.R. 804(A)(5) and that the trial court erred in denying

him leave to file a delayed motion for a new trial. Appellant argues that his motion was

timely under Crim.R. 33(B) due to unavoidable d-cI.ay in the discovery of the new

evidence.

I¶ 14} In State v. Peals, 6th Dist. No. L-10-1035, 2010-Ohio-5893, ¶ 19-20, this

court outlined the analysis undertaken to determine unavoidable delay under Crim.R.

33(B):

Pursuant to Crim.R. 33(B), a defendant who wishes to file a motion

for new trial on account of newly discovered evidence beyond 120 days of

the jury's verdict or the court's decision "must seek leave from the trial

court to file a`delayed motion."' State v. Unsworth, 6th Dist. Nos.

L-09-1205, L-09-1206, 2010-Ohio-398, ¶ 18; State v. Willrs, 6th Dist. No.

I.,-06-1244, 2007-Ohio-3959, ¶ 20. As explained by the court in State v.

Parker, 178 Ohio App.3d 574, 899 N.E.2d 183, 2008-Ohio-5I78, ¶ 16:

"In order to be able to file a motion for a new trial based on newly

discovered evidence beyond the one hundred and twenty days prescribed in

the above rule, a petitioner must first file a motion for leave, showing by

8.

`clear and convincing proof that he has been unavoidably prevented from

filing a motion in a timely fashion."' State v. Morgan, Shelby App. No. 17-

05-26, 2006-Ohio-145, 2006 WL 93108. "[A] party is unavoidably

prevented from filing a motion for new trial if the party had no knowledge

of the existence of the ground supporting the motion for new trial and could

not have learned of the existence of that ground within the time prescribed

,for f ling the motion for new trial in the exercise of reasonable diligence."

State V. Walden' (1984), 19 Ohio App.3d 141, 145-146, 19 OBR 230, 483

N.E.2d 859.

ۦ 15). Crim.R. 33(A)(6) sets forth grounds for a new trial based upon newly

discovered evidence. The rule applies "when new evidence material to the defense is

discovered which the defendant could not with reasonable diligence have discovered and

produced at trial." Crim.R. 33(A)(6). We agree with the state that leave to file was

properly denied because appellant has presented no evidence in support of his motion that

was not presented at trial.

^¶ 161 The only evidentiary material submitted by appellant in the trial court in

support of his motion for leave of court to file a delayed motion for a new trial was his

own affidavit. The affidavit does not include any evidence that is not contained in the

trial record. Specifically, the affidavit presents no evidence to support appellant's claim

that Detective Quinn or the assistant prosecutor misrepresented efforts made by the state

to secure Crawford's attendance at the second trial..., '

9.

i 'b

1¶ 17} Appellant's motion and affidavit present no prima facie evidence of

unavoidable delay occasioned by a delayed discovery of evidence relied upon as the basis

to grant a new trial. As no issue of unavoidable delay is presented, the trial court did not

err in overruling the motion for leave to file as it is was made well outside the 120-day

time requirements of Crim.R. 33(B). See Peals, 6th Dist. No. L-10-1035, 2010-Ohio-

5893 at T 23; State v. Brown, lst Dist. No. C-10050, 201.0-Ohio-4599, 16; Crim.R.

33(B).

18} Accordingly, we fmd appellant's `Assignment of Error No. I riot well-taken.

{¶ 19} Appellant's second and third assignments of error are based on claimed

error arising from the fact that the trial court conducted an "actual" evidentiary hearing

on his motion for leave to file in his absence and without an attorney appearing on his

behalf. The state argues in response that appellant is mistaken and the court did not

conduct an evidentiary hearing on the motion. We have reviewed the record and agree.

Accordingly, we fmd Assignments of Error Nos. II and III not well-taken.

{¶ 20} Under Assignment of Error No. IV, appellant argues that the trial court

ruling denying the motion for leave to file was arbitrary, unreasonable, and an abuse of

discretion because the trial court failed to refer to the record in denying the motion for

leave to file a motion for a new trial.

ۦ 21} We find the argument is without merit. No prima facie evidence of

unavoidable delay was presented on the motion. The trial court was not required to issue

findings of fact or conclusions of law on the motion. State ex rel. Collins v. Pokorny, 86

10.

g 9.

Ohio St.3d 70, 711 N.E.2d 683 (1999); State v. Girts, 121 Ohio App.3d 539, 566, 700

N.E.2d 395 (8th Dist.1997); State v. Lawrence, 2d Dist. No. 24725, 2012-Ohio-837, T 13.

Accordingly, we find Assignment of Error No. IV not well-taken.

{¶ 22} We find that justice was afforded the party complaining and affirm the

judgments of the Lucas County Court of Common Pleas in this consolidated appeal. We

order appellant to pay the costs of the appeals pursuant to App.R. 24.

JudLrments affirrned.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. Seealso 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J.

Arlene Singer, P.J.

Stephen A. Yarbrough, J.CONCUR.

This decision is subject to further editing by the Supreme Court ofOhio's Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court's web site at:htip://www.sconet.state.oh.us/rod/newpdf/?source=6.

11.

S*LA411-JUDGE