Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Kimberly Kendall Corral
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Gregory J. Ochocki Assistant County
BEFORE: Stewart, J., E.T. Gallagher, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
J. STEWART, JUDGE.
In 2006, a jury found defendant-appellant Lloyd Johnson and
his codefendant, Marcus Wilkins, guilty of aggravated murder
on testimony by three eyewitnesses, all of whom knew Johnson.
We affirmed Johnson's conviction on appeal over his
argument that his conviction was against the manifest weight
of the evidence because alibi testimony given by him and his
girlfriend was more persuasive than the eyewitness
identifications. See State v. Johnson, 8th Dist.
Cuyahoga No. 88372, 2007-Ohio-2501. In 2017, Johnson sought
leave to file a motion for a new trial on grounds of newly
discovered evidence - he offered an affidavit by codefendant
Wilkins, who swore that Johnson was not present at the scene
of the shooting. The court denied leave, finding that
Wilkins's affidavit, filed "eleven years later, with
now contradictory information is insufficient" to
provide clear and convincing evidence to support
consideration of a motion for a new trial. Johnson's sole
assignment of error contests this ruling.
A new trial may be granted when "new evidence material
to the defense is discovered which the defendant could not
with reasonable diligence have discovered and produced at the
trial." Crim.R. 33(A)(6). A motion for a new trial on
account of newly discovered evidence must be filed within 120
days after the day on which the verdict was rendered, unless
the defendant shows by clear and convincing evidence that the
defendant "was unavoidably prevented from the discovery
of the evidence upon which he must rely[.]" Crim.R.
33(B). If the motion for a new trial is beyond the 120-day
deadline, the defendant must first seek leave to file the
motion and explain why the defendant was unavoidably
prevented from filing the motion at an earlier date.
"[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 filing the motion for new trial in the
exercise of reasonable diligence." State v.
Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859
(10th Dist.1984). If the trial court finds that the documents
submitted in support of a motion for leave clearly and
convincingly demonstrate that the petitioner was unavoidably
prevented from discovering the evidence, then the court must
grant the motion for leave to file a motion for new trial.
State v. Glover, 2016-Ohio-2833, 64 N.E.3d 442,
¶ 28 (8th Dist). We review a decision denying leave to
file a delayed motion for new trial for an abuse of
discretion. State v. Sutton, 2016-Ohio-7612, 73
N.E.3d 981, ¶ 13 (8th Dist).
The evidence at trial established that Wilkins, who is
Johnson's cousin, was bested in a fistfight with another
male. The male walked away and joined two men, one of whom
was the victim. A bloody and agitated Wilkins made general
threats to them and claimed that he would get the "last
laugh." Both Johnson and Wilkins left, but returned
within the hour in Johnson's van. Johnson jumped out of
the van and approached the victim, claiming that the victim
had attacked Wilkins. Wilkins then exited the van and
approached Johnson and the victim. Wilkins had a gun, and
Johnson ordered him to shoot the victim. Wilkins apparently
hesitated, causing Johnson to demand that Wilkins hand him
the gun so that he could shoot the victim. This started
another altercation that lasted for about 20 minutes, ending
with the victim on his knees pleading for his life. Wilkins
shot the victim, and he and Johnson started to flee. The
victim managed to take a few steps, but seeing this, Johnson
and Wilkins returned and shot him two more times. Three
different eyewitnesses to the shooting testified that they
knew both Johnson and the victim. Johnson and Wilkins fled to
other states after the shooting.
In his motion for leave to file a motion for a new trial,
Johnson appended an affidavit from Wilkins. That affidavit
states in its entirety:
I, Marcus Wilkins swear that I voluntarily provided this
statement to Tom Pavlish [the notary public]. I did not see
Lloyd Johnson with a gun. Lloyd Johnson had no knowledge that
[the victim] and I had gotten into it.
Lloyd Johnson dropped me off at 128th and Woodside. A female
was waiting on him. She followed him to the house and I never
seen him again that night.
The affidavit does not establish unavoidable delay in
discovering the evidence. Johnson argues that he could only
now bring the motion because Wilkins had a "change of
heart" that "did not occur until recently."
Those words do not appear in the affidavit nor can they be
inferred. The lack of any reason justifying the delay shows
that the court did not act arbitrarily by denying leave to
file the motion for a new trial. State v.
Clement, 8th Dist. Cuyahoga No. 97930, 2012-Ohio-3818,
¶ 5 (motion for leave to file a motion for a new trial
failed to offer proof of any kind to show why defendant had
been unavoidably prevented from obtaining affidavit that
allegedly constituted new evidence); State v.
Bialec, 8th Dist Cuyahoga No 86564, 2006-Ohio-1585, ¶ 10
(Corrigan, J, concur ring); State v. Ambartsoumov,
10th Dist. Franklin Nos. 12AP-878 and 12AP-877,
2013-Ohio-3011, ¶ 13.
The failure to establish unavoidable delay means that the
court could not consider the merits of the motion for a new
trial. State v. Barrow, 8th Dist. Cuyahoga No.
103331, 2016-Ohio-2839, ¶ 4, citing State v.
Brown, 8th Dist. Cuyahoga No. 95253, 2011-Ohio-1080,
¶ 12-14. We therefore have no basis to ...