Opinion
Case No. 2016CA00070
09-12-2016
STATE OF OHIO Plaintiff-Appellee v. REGINALD GIBSON Defendant-Appellant
APPEARANCES: For Plaintiff-Appellee JOHN D. FERRERO Prosecuting Attorney By: RONALD MARK CALDWELL Assistant Prosecuting Attorney 110 Central Plaza South, Suite 510 Canton, OH 44702-1413 For Defendant-Appellant REGINALD GIBSON, Pro Se Inmate No. 643-525 Allen Correctional Institution P.O. Box 4501 Lima, OH 45802
JUDGES: Hon. Sheila G. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2013CR0120 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee JOHN D. FERRERO
Prosecuting Attorney
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
110 Central Plaza South, Suite 510
Canton, OH 44702-1413 For Defendant-Appellant REGINALD GIBSON, Pro Se
Inmate No. 643-525
Allen Correctional Institution
P.O. Box 4501
Lima, OH 45802 Farmer, P.J.
{¶1} On February 26, 2013, the Stark County Grand Jury indicted appellant, Reginald Gibson, on one count of felonious assault in violation of R.C. 2903.11 and one count of abduction in violation of R.C. 2905.02. Said charges arose from an incident between appellant and a female acquaintance.
{¶2} A jury trial commenced on July 30, 2013, wherein appellant represented himself with standby counsel present. The jury found appellant guilty as charged. By judgment entry filed August 12, 2013, the trial court sentenced appellant to eight years in prison.
{¶3} Appellant filed an appeal claiming he did not properly waive his right to counsel, the trial court punished him for representing himself by sentencing him to the maximum, and his convictions were not supported by sufficient evidence. This court affirmed appellant's convictions and sentence. State v. Gibson, 5th Dist. Stark No. 2013CA00175, 2014-Ohio-1169.
{¶4} Thereafter, appellant filed two successive petitions for postconviction relief, both denied by the trial court as res judicata. Appellant did not file an appeal on the first denial, but filed an appeal on the second denial. This court affirmed the trial court's decision. State v. Gibson, 5th Dist. Stark No. 2015CA00039, 2015-Ohio-2055.
{¶5} On February 10, 2016, appellant filed a motion for leave to file delayed motion for new trial pursuant to Crim.R. 33(A)(1), (2), (3), and (6), claiming he had newly discovered evidence in the form of voicemails from his phone obtained via Google, and claiming prosecutorial misconduct, judicial bias, and ineffective assistance of counsel he fired prior to trial. By judgment entry filed March 18, 2016, the trial court denied the motion, finding appellant's claims of prosecutorial misconduct, judicial bias, and ineffective assistance of counsel were not based on newly discovered evidence and were therefore untimely under Crim.R. 33(B), and he failed to establish he was unavoidably prevented from discovering the voicemail messages within the one hundred twenty day time limit as prescribed in Crim.R, 33(B). In addition, the trial court denied the motion as res judicata.
{¶6} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I
{¶7} "THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING THE APPELLANT'S MOTION FOR LEAVE TO FILE DELAYED MOTION FOR NEW TRIAL, PURSUANT TO CRIM.R.33(A)(1)(2)(3)(6), UNDER THE DOCTRINE OF RES JUDICATA AND CRIM.R. 33(B), HENCE, HE WAS DEPRIVED OF A RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION."
II
{¶8} "WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO GRANT APPELLANT'S MOTION FOR NEW TRIAL, PURSUANT TO CRIM.R. 33 (A)(1)(2)(3), BECAUSE HE WAS PREVENTED FROM HAVING A FAIR TRIAL, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION IN RULE OF LAW, THEREBY, MATERIALLY AFFECTING HIS SUBSTANTIAL RIGHTS."
I, II
{¶9} Appellant claims the trial court erred in denying his motion for leave to file a delayed motion for new trial and the denial prevented from having a fair trial. We disagree.
{¶10} Crim.R. 33 governs new trial. Appellant based his motion on subsections (A)(1), (2), (3), and (6) which state the following:
(A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights:
(1) Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial;
(2) Misconduct of the jury, prosecuting attorney, or the witnesses for the state;
(3) Accident or surprise which ordinary prudence could not have guarded against;
(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. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the
defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as is reasonable under all the circumstances of the case. The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses.
{¶11} The trial court denied appellant's motion under subsection (B) which states the following:
(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 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.
{¶12} In State v. Petro, 148 Ohio St. 505 (1947), syllabus, the Supreme Court of Ohio held the following:
To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence. (State v. Lopa, 96 Ohio St. 410, 117 N.E. 319, approved and followed.)
{¶13} "A motion for new trial pursuant to Crim.R. 33(B) is addressed to the sound discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion." State v. Schiebel, 55 Ohio St.3d 71 (1990), paragraph one of the syllabus. An abuse of discretion standard also applies to motions for leave to file a delayed motion for new trial. State v. Pinkerman, 88 Ohio App.3d 158 (4th Dist.1993). In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
{¶14} Appellant filed his motion for leave to file delayed motion for new trial over two years after the verdict was rendered, well outside the one hundred twenty day time limit of Crim.R. 33(B). Within the motion, appellant argued he had newly discovered evidence in the form of voicemails from his phone obtained via Google which were unavailable at the time of trial and he was unavoidably prevented from discovering the evidence within the time prescribed in Crim.R. 33(B). Appellant also argued prosecutorial misconduct, judicial bias, and ineffective assistance of counsel.
{¶15} On his claim of prosecutorial misconduct, appellant argued the prosecutor stated on the first day of trial she had physical evidence to present and then "never had any physical evidence to present." Appellant's February 10, 2016 Motion at 4. Appellant also claimed the prosecutor made inflammatory statements in closing argument. In support of his arguments, appellant attached Exhibits K and L, transcript excerpts from the trial.
{¶16} On his claim of judicial bias, appellant attached Exhibit E (correspondence between he and the Court Reporter's Office dated prior to trial), Exhibit F (correspondence from the Clerk of Court's Office dated the second day of trial), and Exhibit J (transcript excerpts from the trial).
{¶17} On his claim of ineffective assistance of counsel, counsel he fired prior to trial, appellant attached Exhibit B (a letter from defense counsel dated prior to trial), Exhibit C (the state's response to discovery dated prior to trial), Exhibits G, H and I (appellant's personal correspondence to defense counsel dated prior to trial), Exhibit J (transcript excerpts from the trial), and Exhibit M (correspondence from defense counsel to the prosecutor regarding discovery dated prior to trial).
{¶18} As evidenced by the exhibits, these three claims were not based on newly discovered evidence and therefore were subject to the fourteen day time limit of Crim.R. 33(B). In addition, these three claims were cognizable at the time of the direct appeal and as the trial court found, are res judicata. Res judicata is defined as "[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, 1995-Ohio-331, syllabus.
{¶19} As for his argument on the voicemails from his phone he obtained via Google, appellant argues newly discovered evidence. In support of his argument, appellant attached Exhibit A (correspondence from Google to the Clerk of Courts dated August 19, 2013, regarding its objections to appellant's subpoena for documents) and Exhibit D (appellant's subpoena to Google dated six days prior to trial, directing Google to bring "all phone records for 330-451-6263 including all text messages and phone calls").
{¶20} Google's correspondence objecting to the subpoena was docketed on August 22, 2013, and was viewable on the Clerk of Court's website; therefore, with the exercise of due diligence, it could have been discovered in the time prescribed by Crim.R. 33(B). In his motion, appellant stated he contacted Google and they advised him on how to download all the voicemails and text messages from the phone and he was now in receipt of the messages. Appellant did not indicate when he received the messages, and did not establish why he was unavoidably prevented from discovering the newly discovered evidence within the one hundred twenty day time limit of Crim.R. 33(B).
{¶21} We note the argument regarding the voicemails alleges the prosecutor left voicemails on his account directed to the victim advising her that appellant had been found guilty of both counts. We fail to find any scienter linking this event to the jury's finding of guilty.
{¶22} Upon review, we find the trial court did not abuse its discretion in denying appellant's motion for leave to file a delayed motion for new trial.
{¶23} Assignments of Error I and II are denied.
{¶24} The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed. By Farmrer, P.J. Delaney, J. and Baldwin, J. concur. SGF/sg 8/18