State v. Wilson , 2023 Ohio 3314 ( 2023 )

[Cite as State v. Wilson, 2023-Ohio-3314.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Andrew J. King, J.
-vs- :
: Case No. 23CA001
:
KEITH WILSON :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Holmes County Court
of Common Pleas, Case No. 15CR015
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 18, 2023
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
ROBERT K. HENDRIX KEITH WILSON, PRO SE
Holmes Co. Asst. Prosecutor Inmate No. 671694
164 E. Jackson St. N.C.C.C. CR-D-69
Millersburg, OH 44654 P.O. Box 1812
Marion, OH 43301
Holmes County, Case No. 23CA001 2
Delaney, J.
{¶1} Appellant Keith Wilson appeals from the January 10, 2023 judgment entry
of the Holmes County Court of Common Pleas overruling his motion for new trial.
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant’s convictions may be found at
our opinion in State v. Wilson, 5th Dist. Holmes No. 15CA015, 2015-Ohio-5588, delayed
appeal not allowed, 146 Ohio St.3d 1414, 2016-Ohio-3390, 51 N.E.3d 659, and appeal
not allowed, 147 Ohio St.3d 1508, 2017-Ohio-261, 67 N.E.3d 825 [Wilson I]. Appellant’s
petition for writ of habeas corpus was denied in its entirety. Wilson v. Coleman, N.D.Ohio
No. 5:16 CV 2690, 2018 WL 8963530, report and recommendation adopted, N.D.Ohio
No. 5:16-CV-26902019 WL 3574738.
{¶3} Appellant was convicted upon one count of aggravated robbery, two counts
of aggravated burglary, one count of grand theft, and one count of burglary, as well as
attendant firearm specifications. The trial court sentenced appellant to eight years on
each count, except the Grand Theft count, on which he received twelve months, with all
counts to run concurrently. The trial court imposed a mandatory three year sentence on
each gun specification, to run concurrent with each other, but consecutive with the other
counts. The court further ordered appellant pay $10,145 in restitution and costs.
{¶4} In Wilson I, appellant argued his convictions were against the manifest
weight of the evidence, some of his convictions should have merged, the trial court erred
in admitting certain evidence, the trial court should have granted a mistrial due to alleged
juror misconduct and an allegedly-faulty transcript, and he received ineffective assistance
Holmes County, Case No. 23CA001 3
of defense trial counsel. We sustained appellant’s arguments relevant to one count of
aggravated burglary and overruled the remaining assignments of error. Id. Specifically,
we noted the following regarding Count III, aggravated burglary:
At this point, and as relevant to Counts 3 and 5, Appellant
reentered Tyler's apartment to steal additional monies, while Tyler
was still in the stairwell. Thereby he committed Burglary, in violation
of R.C. 2911.12(A)(1)(D). Because the testimony of Tyler
demonstrates Tyler was in possession of the gun prior to the
altercation in the stairway, Count 3 was not committed with a
weapon. Therefore, Appellant's conviction on Count 3 for
Aggravated Burglary and the attendant firearm specification was
based on insufficient evidence and is against the manifest weight of
the evidence. Accordingly, Count 3 should be dismissed.
State v. Wilson, 5th Dist. Holmes No. 15CA015, 2015-Ohio-
5588, ¶ 41
{¶5} Appellant filed a motion for judicial release in August 2021 which was
overruled by the trial court.
{¶6} On January 3, 2023, appellant filed a motion for new trial on the basis of
newly-discovered evidence pursuant to Crim.R. 33(A). Specifically, appellant claimed,
“In Defendant’s trial, the Prosecuting Attorney withheld Exculpatory Evidence from Ron
Larry’s 15CR-016 trial (277-280) as this evidence would have changed the outcome of
Defendant’s trial, based on Defendant not being aware of this evidence, but the
Prosecutor and Judge were. The Prosecuting Attorney’s witness, Kenny Irwin, (State’s
Holmes County, Case No. 23CA001 4
witness) was also inside the ride over, states at Roy Larry’s trial the phone is not the
Defendant’s phone, nor did the Defendant use that phone * * *.” Motion for New Trial, 5.
Attached to appellant’s motion is his own affidavit stating he was denied a fair trial.
Appellant also acknowledged his motion for new trial is untimely, but argued Covid
hampered his access to the law library and other materials.
{¶7} Appellee responded with a memorandum in opposition on January 4, 2023.
{¶8} The trial court overruled the motion for new trial on January 10, 2023.
{¶9} Appellant now appeals from the trial court’s decision of January 10, 2023.
{¶10} Appellant raises three assignments of error, sic throughout:
ASSIGNMENTS OF ERROR
{¶11} “I. DEFENDANT SUFFERED INEFFECTIVE ASSISTANCE OF COUNSEL
DUE TO COUNSEL! UNETHICAL CONDUCT BEFORE THE JURY WHICH
[PREVENTED] HIM FROM RECEIVING A FAIR TRIAL AS GUARANTEED BY THE 6TH
AMENDMENT OF THE U.S. CONSTITUTION.”
{¶12} “II. DEFENDANT SUFFERED PROSECUTORIAL MISCONDUCT
VIOLATING HIS RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE U.S.
CONSTITUTION AMEND. 14.”
{¶13} “III. WHETHER DEFENDANT’S VERDICT CAN BE SUSTAINED AS FAIR
AND UNBIASED IN LIGHT OF NEWLY DISCOVERED EVIDENCE.”
ANALYSIS
I., II.
{¶14} Appellant’s first and second assignments of error assert ineffective
assistance of defense trial counsel and prosecutorial misconduct arising from his 2015
Holmes County, Case No. 23CA001 5
trial. These arguments do not arise from the motion for new trial and are barred by res
judicata.
{¶15} Under the doctrine of res judicata, “[a] valid, final judgment rendered upon
the merits bars all subsequent actions based upon any claim arising out of the transaction
or occurrence that was the subject matter of the previous action.” Grava v. Parkman Twp.,
73 Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus. “The very purpose of res judicata is
to deter the repeated litigation of resolved issues, thereby ensuring finality in judgments
and the conservation of judicial resources.” In re Guardianship of Pond, 5th Dist.
Delaware No. 22 CAF 12 0081, 2023-Ohio-2492, ¶ 50, citing State v. Martin, 8th Dist.
Cuyahoga No. 110257, 2022-Ohio-524, 2022 WL 557712, ¶ 10, internal citation omitted.
{¶16} As noted supra, appellant filed a direct appeal from his convictions and
sentence. The issues raised by appellant in the first and second assignments of error
were cognizable on direct appeal from his judgment of conviction and sentence, and his
latest arguments are barred by res judicata. State v. Feagin, 5th Dist. Richland No. 2023
CA 0005, 2023-Ohio-2847, ¶ 36, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104(1967), paragraph nine of the syllabus.
{¶17} Moreover, we note the arguments have no bearing on the motion for new
trial and to the extent we can discern appellant’s factual allegations, it is not clear to us
that the same allegations were before the trial court in the motion and resulting judgment
from which appellant appeals. We understand appellant has filed this appeal pro se.
Nevertheless, “like members of the bar, pro se litigants are required to comply with rules
of practice and procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP–116,
2006–Ohio–3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007–T–0022, 2008–Ohio–
Holmes County, Case No. 23CA001 6
2128, ¶ 11. We also understand that “an appellate court will ordinarily indulge a pro se
litigant where there is some semblance of compliance with the appellate rules.” State v.
Richard, 8th Dist. No. 86154, 2005–Ohio–6494, ¶ 4 (internal quotation omitted).
{¶18} In State v. Hooks, 92 Ohio St.3d 83, 2001–Ohio–150, 748 N.E.2d 528, the
Supreme Court noted, “a reviewing court cannot add matter to the record before it that
was not a part of the trial court's proceedings, and then decide the appeal on the basis of
the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978).” It is
also a longstanding rule “that the record cannot be enlarged by factual assertions in the
brief.” State v. Long, 5th Dist. Richland No. 17CA15, 2017-Ohio-2848, ¶ 11, citing
Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980), citing
Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d
227(1963). New material and factual assertions contained in any brief in this court may
not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006–Ohio–6515, 858
N.E.2d 386, ¶ 7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006–Ohio–1195, 843
N.E.2d 1202, ¶ 16.
{¶19} Appellant’s first and second assignments of error are overruled.
III.
{¶20} In his third assignment of error, appellant argues the trial court should have
granted his motion for new trial based on testimony from another trial. We disagree.
{¶21} The decision whether to grant a new trial on grounds of newly discovered
evidence falls within the sound discretion of the trial court. State v. Hawkins, 66 Ohio
St.3d at 350, 612 N.E.2d 1227. We cannot reverse unless there has been a gross abuse
of that discretion, and whether that discretion has been abused must be disclosed from
Holmes County, Case No. 23CA001 7
the entire record. State v. Petro, 148 Ohio St. at 507-508, 76 N.E.2d 370, quoting State
v. Lopa, 96 Ohio St. 410, 411, 117 N.E. 319(1917).
{¶22} “The question of whether to decide a motion on the supporting evidence
filed with the motion or to hold an evidentiary hearing is within the discretion of the trial
court.” United States v. O'Dell, 805 F.2d 637, 643 (6th Cir. 1986); State v. Sutton, 2016-
Ohio-7612, 73 N.E.3d 981, ¶ 13 (8th Dist.); State v. Shuster, 5th Dist. Morgan No.
18AP0007, 2019-Ohio-4233, ¶ 9.
{¶23} A review under the abuse-of-discretion standard is a deferential review. “It
is not sufficient for an appellate court to determine that a trial court abused its discretion
simply because the appellate court might not have reached the same conclusion or is,
itself, less persuaded by the trial court's reasoning process than by the countervailing
arguments.” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14, citing AAAA
Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157,
161 (1990).
{¶24} First, we note appellant summarized allegedly-relevant testimony from a
different trial in his motion before the trial court and in the instant appeal. Appellant has
not filed any of the cited testimony or made any attempt to make such testimony part of
the record in the instant case. It is therefore difficult for us to discern the relevance of the
cited testimony.
{¶25} Moreover, appellant filed an admittedly untimely motion for new trial
premised upon testimony allegedly produced at a trial that occurred in 2015. If appellant's
motion was in fact based on newly discovered evidence, he would have to show by clear
Holmes County, Case No. 23CA001 8
and convincing evidence he was unavoidably prevented from discovering the evidence in
a timely fashion. Crim.R. 33 provides, in pertinent part:
(A) Grounds. A new trial may be granted on the motion of the
defendant for any of the following causes affecting materially his
substantial rights:
***
(6) When new evidence material to the defense is discovered
which the defendant could not with reasonable diligence have
discovered and produced at the trial.
***
(B) ) Motion for new trial; form, time.
Application for a new trial shall be made by motion which, except for
the cause of newly discovered evidence, shall be filed within fourteen
days after the verdict was rendered, or the decision of the court
where a trial by jury has been waived, unless it is made to appear by
clear and convincing proof that the defendant was unavoidably
prevented from filing his motion for a new trial, in which case the
motion shall be filed within seven days from the order of the court
finding that the defendant was unavoidably prevented from filing
such motion within the time provided herein.
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
Holmes County, Case No. 23CA001 9
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 discovering the evidence within
the one hundred twenty-day period.
{¶26} Thus, Crim.R. 33(B) contemplates a two-step procedure when a defendant
seeks to file a motion for new trial outside either the 14-day deadline for motions filed
under Crim.R. 33(A)(2) or the 120-day deadline for motions filed under Crim.R. 33(A)(6).
State v. Hawk, 10th Dist. Franklin No. 21AP-265, 2021-Ohio-4533, ¶ 13. In Hawk, the
Court noted,
In the first step, the defendant must demonstrate that he was
unavoidably prevented from discovering the evidence relied upon to
support the motion for new trial. State v. Bethel, 10th Dist. No. 09AP-
924, 2010-Ohio-3837, ¶ 13; State v. Gaven, 10th Dist. No. 16AP-
645, 2017-Ohio-5524, ¶ 13, 17. In the second step, if the trial court
finds unavoidable prevention by clear and convincing evidence, then
the defendant must file the motion for new trial within seven days
from the trial court's order. Bethel at ¶ 13; Gaven at ¶ 13, 17.
State v. Hawk, 10th Dist. Franklin No. 21AP-265, 2021-Ohio-
4533, ¶ 13.
{¶27} “The phrase ‘unavoidably prevented’ means that a defendant was unaware
of those facts and was unable to learn of them through reasonable diligence.” State v.
Holmes County, Case No. 23CA001 10
Thorton, 5th Dist. Muskingum No. CT2016-0041, 2017-Ohio-637, ¶41. In determining
whether a defendant has exercised reasonable diligence, courts have held “the defendant
must describe all investigative actions undertaken within the 120-day period for timely
filing a Crim.R. 33(A)(6) motion and explain why he was unavoidably prevented from
discovering the evidence before the 120-day period elapsed.” State v. Cashin, 10th Dist.
Franklin No. 17AP-338, 2017-Ohio-9289, ¶17 (citations omitted). “Mere conclusory
allegations do not prove that the defendant was unavoidably prevented from discovering
the evidence he seeks to introduce as support for a new trial.” Cashin, ¶ 17, (citations
omitted).
{¶28} Here, it is undisputed appellant's motion for a new trial was not filed within
one hundred twenty days after the day upon which the verdict was rendered. Appellant
did not demonstrate in his motion by clear and convincing evidence he was unavoidably
prevented from discovering the alleged newly discovered evidence within one hundred
twenty days of the verdict. Appellant did not seek leave of the court to file the motion for
new trial asserting he was unavoidably prevented from timely discovering the new
evidence.
{¶29} A defendant must first seek leave to file a delayed motion for a new trial.
State v. Baldwin, 5th Dist. Stark No. 2013CA00134, 2014-Ohio-290, ¶ 22. A trial court
may not consider the merits of the motion for a new trial until it makes a finding of
unavoidable delay. State v. Lanier, 2d Dist. No.2009 CA 84, 2010–Ohio–2921, ¶ 17.
{¶30} A defendant is “unavoidably prevented” from filing a motion for new trial if
the defendant “had no knowledge of the existence of the ground supporting the motion
and could not have learned of that existence within the time prescribed for filing the motion
Holmes County, Case No. 23CA001 11
in the exercise of reasonable diligence.” State v. Walden, 19 Ohio App.3d 141, 145–146
(10th Dist.1984); State v. Lake, 5th Dist. Richland No. 2010 CA 88, 2011–Ohio–261, ¶
37.
{¶31} Moreover, no hearing is required, and leave may be summarily denied,
where neither the motion nor its supporting affidavits embody prima facie evidence of
unavoidable delay. State v. Peals, 6th Dist. No. L–10–1035, 2010–Ohio–5893, ¶ 23, citing
Lanier at ¶ 22; State v. Clumm, 4th Dist. No. 08CA32, 2010–Ohio–342, ¶ 28; State v.
Bush, 10th Dist. No. 08AP–627, 2009–Ohio–441, ¶ 12; State v. Parker, 178 Ohio App.3d
574, 2008–Ohio–5178, ¶ 21 (2d Dist.); State v. Norman, 10th Dist. No. 04AP–1312,
2005–Ohio–5087, ¶ 9.
{¶32} We find the trial court did not err in summarily denying appellant's motion
for new trial. Baldwin, supra, 2014-Ohio-290, ¶ 25.
CONCLUSION
{¶33} Appellant’s three assignments of error are overruled and the judgment of
the Holmes County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, P.J. and
King, J., concur.