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State v. West

Court of Appeals of Ohio, Fourth District, Scioto

April 25, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
JOHN H. WEST, JR., Defendant-Appellant.

          CRIMINAL APPEAL FROM COMMON PLEAS COURT

         APPEARANCES:

          John H. West, Jr., Orient, Ohio, pro se.

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

          DECISION AND JUDGMENT ENTRY

          ABELE, J.

         {¶ 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.[1] 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, ΒΆ 19. "If it is made to appear by clear and convincing proof that the defendant was unavoidably ...


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