Court of Appeals of Ohio, Fourth District, Scioto
E. Gavin, Madison Correctional Institution, London, Ohio, pro
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.
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.
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.
We affirm the judgment of the trial court.
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.
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.
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
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.
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.
In July 2017, Gavin filed a renewed postconviction
motion for independent testing of the heroin
found by the police and fingerprint analysis of the packaging
material for the heroin. The trial court ...