Court of Appeals of Ohio, Fourth District, Scioto
CRIMINAL APPEAL FROM COMMON PLEAS COURT
H. West, Jr., Orient, Ohio, pro se.
E. Kuhn, Scioto County Prosecutor, and Jay Willis, Scioto
County Assistant Prosecuting Attorney, Portsmouth, for
DECISION AND JUDGMENT ENTRY
1} John H. West, Jr., defendant below and appellant
herein, appeals from the Scioto County Common Pleas Court
judgment that denied his motion for leave to file a delayed
motion for new trial after his conviction and sentence for
(1) three counts of drug trafficking in violation of RC.
2925.03; (2) two counts of drug possession in violation of
RC. 2925.11; and (3) possession of criminal tools in
violation of RC. 2923.24.
2} Appellant assigns one error for review:
"THE TRIAL COURT ABUSED ITS DISCRETION, AND COMMITTED
[PREJUDICIAL] ERROR WHEN THE TRIAL COURT FAIL[ED] TO CONDUCT
[AN] EVIDENTIARY HEARING TO DETERMINE WHETHER APPELLANT JOHN
H. WEST, JR. WAS UNAVOIDABLY PREVENTED FROM DISCOVERING NEWLY
DISCOVERED [TESTIMONIAL EVIDENCE] OF BREON KELLY'S
RECANTED TESTIMONY AND A FAIR MECHANISM FOR FACTUAL
DEVELOPMENT ON HIS MOTION FOR LEAVE TO FILE MOTION FOR NEW
TRIAL INSTANTER AND MOTION FOR NEW TRIAL PURSUANT TO CRIM.R.
33 (A)(6). IN VIOLATION OF DUE PROCESS RIGHTS UNDER THE
FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION."
3} During an investigation into the delivery of
drugs from Michigan to Portsmouth, Scioto County authorities
became aware of the activities of appellant and his then
girlfriend, Shelby Nelson. For a number of months, both appellant
and Nelson transported drugs from Franklin County to Scioto
County, where they supplied drugs for local sale from Brandi
Woods' Portsmouth apartment. Portsmouth Police involved
with the Southern Ohio Drug Task Force arranged for three
controlled purchases from Brandi Woods. Later, police
obtained a search warrant for Woods' apartment and,
during the warrant's execution, encountered several
individuals, including appellant. Authorities found drugs in
the apartment, a jeep parked nearby that appellant and Nelson
used to travel to Columbus, and over $2, 000 cash in the
pockets of a pair of appellant's shorts.
4} At the jury trial, Shelby Nelson confirmed that,
several times a week in 2011, she and appellant had been
"running" cocaine (that they "cooked"
into crack) and other drugs from Columbus to Portsmouth.
Usually, they would obtain one and one half to two ounces of
cocaine per unit. Brandi Woods testified that appellant used
her apartment to traffic drugs in Portsmouth. Woods further
related that (1) the drugs that she sold in the three
controlled buys to a police informant all came from
appellant, and (2) the other person present at her apartment
during the search warrant's execution, Breon Kelly, is
also a "runner" for appellant and sells drugs in
Portsmouth. Appellant testified in his own behalf and,
although he admitted that he was present at Woods'
apartment during the search warrant's execution, he
denied any involvement in drug trafficking.
5} After hearing the evidence adduced at trial, on
July 31, 2012 the jury returned guilty verdicts on all six
counts. After merging three counts into the other counts, the
trial court imposed a ten year prison sentence for the first
trafficking charge (count one), twelve months for the second
trafficking charge (count three) and twelve months for the
possession of criminal tools. The court further ordered that
the sentences be served consecutively for an aggregate twelve
year sentence. We affirmed appellant's convictions and
sentence. See State v. West, 4th Dist. Scioto No.
12CA3507, 2014-Ohio-1941. Subsequently, appellant filed a
motion for delayed appeal that the Supreme Court of Ohio
denied. State v. West, 140 Ohio St.3d 1413,
2014-Ohio-3785, 15 N.E.3d 882.
6} On April 28, 2017, appellant filed a motion for
leave to file a delayed motion for new trial. The trial court
denied that motion on August 10, 2017. This appeal followed.
7} Generally, an appellate court applies the abuse
of discretion standard of review when reviewing a trial
court's denial of a motion for leave to file a delayed
motion for new trial. State v. Hoover-Moore,
2015-Ohio-4863, 50 N.E.3d 1010, ¶ 14 (10th Dist.);
State v. Seal, 2017-Ohio-116, 75 N.E.3d 1035, ¶
9 (4th Dist.). An appellate court also applies the abuse of
discretion standard of review to a trial court's decision
whether to conduct an evidentiary hearing on a motion for
leave to file a delayed motion for new trial.
Hoover-Moore, supra; State v. Jones, 9th Dist.
Summit No. 26568, 2013-Ohio-2986, ¶ 8. An abuse of
discretion implies that the trial court's decision is
arbitrary, unconscionable, or unreasonable. State v.
Minton, 2016-Ohio-5427, 69 N.E.3d 1108, ¶ 19 (4th
Dist.); State v. Clark, 71 Ohio St.3d 466, 470, 644
N.E.2d 331 (1994).
8} Crim.R. 33(A) allows a defendant to request a new
trial "[w]hen 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 must be filed
within 14 days after the verdict is rendered, "except
for the cause of newly discovered evidence."
Crim.R.33(B). However, a motion for new trial based on newly
discovered evidence must be filed within 120 days after the
day the verdict was rendered, unless the defendant shows by
"clear and convincing proof that [he] was unavoidably
prevented from the discovery of the evidence upon which he
must rely * * *." Id. "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 and could not have learned of
that existence within the time prescribed for filing the
motion in the exercise of reasonable diligence."
Hoover-Moore at ¶ 13, citing State v.
Berry, 10th Dist. Franklin No. 06AP-803, 2007-Ohio-2244,
¶ 19. "If it is made to appear by clear and
convincing proof that the defendant was unavoidably ...