Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Gavin

Court of Appeals of Ohio, Fourth District, Scioto

February 1, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
RONALD GAVIN #695-919, Defendant-Appellant.

          Ronald E. Gavin, Madison Correctional Institution, London, Ohio, pro se appellant.

          Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          WILLIAM H. HARSHA, JUDGE.

         {¶1} Ronald E. Gavin appeals the judgment denying his motion for leave to file a motion for new trial based on newly discovered evidence. First Gavin asserts that the trial court erred by denying his motion without conducting an evidentiary hearing. Gavin was aware of the existence of some of the grounds supporting his delayed motion for new trial before his trial. Likewise, he knew of the grounds supporting his motion since at least the summer of 2015, when two of the four affidavits upon which he supported his motion were executed. However, he delayed until nearly two years later, in May 2017, to seek leave to file his motion. Because Gavin did not establish by clear and convincing evidence that he was unavoidably prevented from filing a timely motion for new trial based on newly discovered evidence, the trial court did not abuse its discretion by denying his motion without holding an evidentiary hearing.

         {¶2} Next Gavin contends that the trial court violated his right to due process by denying his renewed postconviction motion for independent testing of the heroin and the fingerprint analysis of the packaging material for the heroin. But he did not include this judgment in his notice of appeal; nor did he amend his notice of appeal to include the trial court's denial of his renewed motion; and he did not file an independent notice of appeal from the judgment. Therefore this contention is not properly part of the appeal and we cannot address its merits.

         {¶3} We affirm the judgment of the trial court.

         I. FACTS

         {¶4} The Scioto County Grand Jury returned an indictment charging Ronald E. Gavin and an accomplice with several drug-related charges. The case proceeded to a jury trial where several witnesses, including Manual Lofton and Marcell Woods, testified that Gavin sold heroin to people on numerous occasions during the summer of 2013. Gavin obtained the heroin from Chicago sources, including his cousin.

         {¶5} The jury convicted Gavin of multiple heroin-related offenses and in November 2013, the trial court sentenced him to prison. In State v. Gavin, 4th Dist. Scioto No. 13CA3592, 2015-Ohio-2996, we reversed his conviction for tampering with evidence and remanded the cause to the trial court to vacate that conviction and sentence. But we affirmed his remaining convictions and rejected his contention that he had received ineffective assistance of counsel. On remand the trial court complied with our mandate.

         {¶6} In April 2016, Gavin filed a petition for postconviction relief claiming that he was denied the effective assistance of trial counsel and that his convictions were obtained through fraud on the court. He attached the affidavits of several persons who collectively claimed that: (1) Lofton and Woods had framed Gavin by planting the heroin in the car that Gavin regularly drove; (2) Gavin had informed his trial attorney about his potential witnesses; and (3) his attorney failed to call them to testify on his behalf at trial. But Gavin failed to indicate how he was unavoidably prevented from discovering any of this purported newly discovered evidence. The affidavits of the potential witnesses were executed in July, August, and October 2015, and in March and April 2016. In May 2016, the trial court denied the petition for postconviction relief without conducting an evidentiary hearing.

         {¶7} On appeal we held that Gavin did not establish that the trial court had jurisdiction to address the merits of his untimely petition. We reached this conclusion because he admitted that some of his evidence "may have been available to [him] at the time of trial, " and he did "not explain how either he or his appellate counsel were unavoidably prevented from having access to the evidence attached to his petition at the time he filed his direct appeal or when he could have filed a timely petition for postconviction relief." State v. Gavin, 4th Dist. Scioto No. 16CA3757, 2017-Ohio-134, ¶ 14-15. We modified the judgment of the trial court to reflect the dismissal of the petition and affirmed the judgment of the trial court as modified. Id. at ¶ 16-17.

         {¶8} In May 2017, Gavin sought leave to file a motion for a new trial based primarily on newly discovered evidence; he attached a proposed motion for new trial and a request for an evidentiary hearing. He also attached four of the affidavits, executed in July, August, and October 2015, and in April 2016, that he had filed in support of his unsuccessful petition for postconviction relief. The trial court denied the motion without an evidentiary hearing after concluding that Gavin had not established how he was unavoidably delayed from filing his motion, his motion was untimely, and he had not submitted newly discovered evidence. Gavin has appealed the denial of his motion for leave.

         {¶9} In July 2017, Gavin filed a renewed postconviction motion[1] for independent testing of the heroin found by the police and fingerprint analysis of the packaging material for the heroin. The trial court ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.