State v. Cleavenger

[Cite as State v. Cleavenger, 2022-Ohio-1041.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29711
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TODD CLEAVENGER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 19 01 0041
DECISION AND JOURNAL ENTRY
Dated: March 30, 2022
CARR, Judge.
{¶1} Appellant, Todd Cleavenger, appeals the judgment of the Summit County Court of
Common Pleas. This Court affirms.
I.
{¶2} The Summit Count Grand Jury indicted Cleavenger on one count of kidnapping,
one count of felonious assault, and one count of abduction. The matter proceeded to a jury trial
where Cleavenger was convicted of the charged offenses. After merging the count of abduction
into the count of kidnapping for sentencing purposes, the trial court imposed an 11-year prison
term on the count of kidnapping and a five-year prison term on the count of felonious assault. The
trial court further ordered that the prison sentences were to be served consecutively.1
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As of the date of this decision, Cleavenger’s direct appeal is still pending.
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{¶3} Around the time of Cleavenger’s sentencing and immediately thereafter,
Cleavenger filed a host of motions in the trial court challenging his convictions, which were
denied.
{¶4} Approximately six months later, on February 24, 2020, Cleavenger filed another
series of motions in the trial court. Cleavenger filed a motion for leave to file a motion for new
trial as well as a supplement to the motion containing an affidavit. The trial court denied the
motion approximately one week later.
{¶5} Cleavenger has appealed from the order denying his motion for leave to file a
motion for new trial. Now before this Court, Cleavenger raises three assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT INCORRECTLY DENIED CLEAVENGER’S MOTION
FOR LEAVE TO MOVE FOR A NEW TRIAL, UNDER [CRIM.R.] 33(A)(6)[.]
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY NOT DETERMINING IF “UNAVOIDABLE
PREVENTION” HAD IN FACT BEEN TOTALLY ESTABLISHED TO
DETERMINE IF THE EVIDENCE WAS NEWLY DISCOVERED; AND/OR
DETERMINE IF CLEAVENGER ACTED WITH “REASONABLE
DILIGENCE” IN [AND] AFTER THE DISCOVERY OF THE NEW EVIDENCE,
WITH RESPECT TO DENYING CLEAVENGER’S MOTION FOR LEAVE TO
FILE A MOTION FOR NEW TRIAL [AND] SUPPLEMENT[.]
{¶6} In his first assignment of error, Cleavenger contends that the trial court abused its
discretion in denying his motion for leave to file a motion for new trial. In his second assignment
of error, Cleavenger argues that the trial court made an erroneous finding regarding whether he
was unavoidably prevented from discovering the evidence which served as the basis for his motion
for leave. This Court disagrees.
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{¶7} “A trial court’s ruling on a motion for leave to file a motion for new trial will not
be reversed absent an abuse of discretion.” State v. Powe, 9th Dist. Summit No. 29413, 2019-
Ohio-5332, ¶ 9. An abuse of discretion implies that the trial court’s attitude was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶8} Crim.R. 33(B) states:
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 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.
{¶9} In this case, Cleavenger filed a motion for leave to file a motion for new trial on the
basis of newly discovered evidence. Specifically, Cleavenger claimed that he had discovered
evidence that would demonstrate that it was physically impossible for him to have committed the
alleged crimes. Cleavenger filed his motion outside of the 120-day window set forth in Crim.R.
33(B). “A defendant who seeks to file a motion for a new trial outside the timeframe provided by
Crim.R. 33(B) must first obtain leave by filing a motion demonstrating that he was unavoidably
prevented from filing the motion for a new trial or, in the case of a motion premised on newly
discovered evidence, that he was ‘unavoidably prevented from the discovery of the evidence upon
which he must rely.’” State v. Baskerville, 9th Dist. Summit No. 29327, 2019-Ohio-3639, ¶ 7,
quoting Crim.R. 33(B).
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{¶10} In support of his motion for leave, Cleavenger argued that the transcript of
proceedings was recently completed and that a review of the transcript had revealed details about
the case that were not previously known. Cleavenger further contended that he had recently
obtained affidavits from medical professionals containing new information about the aging
timeframe and stages of bruises. Similarly, Cleavenger suggested that he had discovered scientific
research articles regarding the aging of bruises. In his affidavit, Cleavenger averred that he first
learned that this information was available when speaking with a physician at the Richland
Correctional Institution (“RCI”), who explained that studying injuries on the human body can
reveal the timeframe within which the injuries occurred. Cleavenger conducted research in RCI’s
library to confirm the physician’s statements. Cleavenger averred that the constraints associated
with his incarceration prohibited him from discovering this information earlier.
{¶11} In denying Cleavenger’s motion for leave, the trial court found that Cleavenger
failed to demonstrate by clear and convincing evidence that the allegedly newly discovered
evidence did not exist or could not have been discovered either in time for trial or prior to the
deadline for filing a timely motion for new trial. The trial court observed that it appeared
Cleavenger was simply trying to raise a new theory of the case in his motion.
{¶12} Under these circumstances, we cannot say that the trial court’s denial of the motion
for leave to file a motion for new trial was an abuse of discretion. To the extent that Cleavenger’s
motion was predicated on a review of the transcript of proceedings, it is axiomatic that the details
contained therein were available to the parties at the time of trial and did not constitute new
evidence. See State v. Stone, 9th Dist. Lorain No. 89CA004522, 1989 WL 117280, *2 (Oct. 4,
1989). Cleavenger further failed to demonstrate that he was unavoidably prevented from
discovering the evidence pertaining to the aging of bruises, which was purportedly derived from
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research articles and affidavits from medical professionals. A defendant is not unavoidably
prevented from discovering new evidence when he could have discovered the evidence through
the exercise of due diligence and reasonable effort in preparing for trial. State v. Harwell, 2d. Dist.
Montgomery No. 28104, 2019-Ohio-643, ¶ 17; Healy v. Goodyear Tire & Rubber Co., 9th Dist.
Summit No. 25888, 2012-Ohio-2170, ¶ 16. In his own affidavit, Cleavenger offered an
explanation regarding how he did not come to personally learn about the evidence pertaining to
the aging of bruises until February 2020. Notably, however, Cleavenger failed to explain, much
less show by clear and convincing evidence, why this information could not have been discovered
through the exercise of due diligence at the time of trial. It follows that the trial court’s decision
to deny the motion for leave cannot be characterized as unreasonable, arbitrary, or unconscionable.
See Blakemore, 5 Ohio St.3d at 219.
{¶13} Cleavenger’s first and second assignments of error are overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED BY NOT DETERMINING IF CLEAVENGER[’]S
DUE PROCESS RIGHTS WERE VIOLATED AS HE HAD ASSERTED, IN HIS
“MOTION FOR LEAVE TO FILE A MOTION FOR NEW TRIAL” [AND]
“SUPPLEMENT[,]” PURSUANT TO GIGLIO V. UNITED STATES, AS BY
CLEAVENGER AFFIRMING SUCH, DEMANDED THE SENTENCING
COURT UTILIZE A DIFFERENT STANDARD TO REVIEW CLEAVENGER’S
PLEADING[.] THE SENTENCING COURT ABUSED ITS DISCRETION BY
NOT COMPLETING SUCH [AND] FOLLOWING THE APPLICABLE LAW.
{¶14} In his final assignment of error, Cleavenger maintains that the trial court erred by
failing to undertake an analysis pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v.
United States, 405 U.S. 150 (1972) as to whether the State violated his due process rights by
refusing to disclose exculpatory evidence. Although Cleavenger raised a number of issues in
support of his motion for leave to file a motion for new trial and the supplement thereto, he did not
raise a due process challenge pursuant to Brady and Giglio. Because Cleavenger did not raise this
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issue before the trial court, he has forfeited all but plain error on appeal. See State v. Kirkby, 9th
Dist. Summit Nos. 27381, 27399, 2015-Ohio-1520, ¶ 13. Cleavenger has not set forth a plain error
argument in his merit brief. App.R. 16(A)(7). Accordingly, Cleavenger’s third assignment of
error is overruled.
III.
{¶15} Cleavenger’s first, second, and third assignments of error are overruled. The
judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
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TEODOSIO, P. J.
SUTTON, J.
CONCUR.
APPEARANCES:
TODD CLEAVENGER, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.