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State of Ohio v. Shawn L. Hawkins

November 4, 2011

STATE OF OHIO,
PLAINTIFF-APPELLEE,
v.
SHAWN L. HAWKINS, DEFENDANT-APPELLANT.



Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: TRIAL NO. B-8903838

Per curiam.

Cite as

State v. Hawkins,

OPINION.

Affirmed

Please note: We have removed this case from the accelerated calendar.

OHIO FIRST DISTRICT COURT OF APPEALS

{¶1} Defendant-appellant Shawn L. Hawkins appeals from the Hamilton County Common Pleas Court's judgment overruling his motion for leave to file a motion for a new trial. We affirm the court's judgment.

{¶2} Hawkins was convicted in 1990 upon jury verdicts finding him guilty of two counts of aggravated robbery and four counts of aggravated murder. For the aggravated murders, the trial court imposed death sentences. Hawkins unsuccessfully challenged his convictions in appeals to this court, State v. Hawkins (Dec. 18, 1991), 1st Dist. Nos. C-900092 and C-910017, and to the Ohio Supreme Court, State v. Hawkins (1993), 66 Ohio St.3d 339, 612 N.E.2d 1227, in a petition for a writ of certiorari to the United States Supreme Court, Hawkins v. Ohio (1993), 510 U.S. 984, 114 S.Ct. 486, and in an R.C. 2953.21 petition for post-conviction relief. State v. Hawkins (June 26, 1996), 1st Dist. No. C-950130, discretionary appeal not allowed, (1996), 77 Ohio St.3d 1486, 673 N.E.2d 145.

{¶3} In 1997, Hawkins petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Ohio. In 2005, after discovery and an evidentiary hearing, the district court conditionally granted the writ on the ground of ineffective assistance of trial counsel in investigating and preparing the case in mitigation. On all other grounds, the court denied the petition. On appeal, the United States Court of Appeals for the Sixth Circuit reversed the judgment of the district court to the extent that it granted the writ on the ineffective-counsel claim and affirmed the judgment on all other grounds. See Hawkins v. Coyle (C.A.6, 2008), 547 F.3d 540, certiorari denied (2009), ___ U.S. ___, 130 S.Ct. 553.

{¶4} In May 2011, Hawkins filed with the common pleas court a motion for leave to file a motion for a new trial, along with his proposed new-trial motion. Following a hearing, the court denied leave, and this appeal followed.*fn1

{¶5} On appeal, Hawkins presents a single assignment of error, challenging the overruling of his motion for leave to file a new-trial motion. The challenge is untenable.

{¶6} The Ohio Supreme Court recently determined that "[a] trial court has jurisdiction to decide a [Crim.R. 33(A)(6)] motion for a new trial based on newly discovered evidence in a case in which the death penalty has been affirmed on appeal." See State v. Davis, ___ Ohio St.3d ___, 2011-Ohio-5028, ___ N.E.2d ___, paragraph two of the syllabus. Crim.R. 33(A)(6) permits a trial court to grant a new trial on the ground that "new evidence material to the defense [has been] discovered, which the defendant could not with reasonable diligence have discovered and produced at trial." The rule requires that the motion be filed either within 120 days of the return of the verdict or within seven days after the trial court, upon "clear and convincing proof that the defendant [had been] unavoidably prevented from discovering the evidence" within the 120-day period, grants leave to file a new-trial motion out of time. Crim.R. 33(B).

{ΒΆ7} Hawkins sought a new trial 21 years after the verdicts had been returned in his case. In his motion for leave to file a new-trial motion, he asserted that he had recently discovered evidence in the form of a forensic pathologist's expert opinion that undermines the state's theory of the case, and that he had been unavoidably ...


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