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State v. Delawder

Court of Appeals of Ohio, Fourth District, Scioto

August 22, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
LARRY I. DELAWDER, Defendant-Appellant.

          R. Tracy Hoover, Portsmouth, Ohio, for Appellant.

          Shane A. Tieman, Scioto County Prosecutor, and Jay Willis, Assistant Scioto County Prosecutor, Portsmouth, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          Jason P. Smith, Presiding Judge.

         {¶1} Larry I. Delawder, ("Appellant"), appeals the judgment entry of the Court of Common Pleas, Scioto County, dated October 1, 2018, which denied his Motion to File a Delayed Motion for a New Trial/Petition for Post-Conviction Relief. On appeal, Appellant asserts that (1) the trial court erred and abused its discretion when it found he was not unavoidably prevented from filing his delayed motion for leave to file motion for new trial; and (2) this court should engage in a de novo review of his identical argument as to the delayed motion for leave to file a postconviction petition. Upon our own review, we find no merit to Appellant's assignments of error. Accordingly, we overrule Appellant's assignment of error as it pertains to the delayed motion for new trial. To the extent that Appellant's motion constituted a delayed motion for post conviction relief, we find that the motion was time-barred and should have been dismissed. Thus, we affirm the judgment of the trial court as modified.

         FACTS AND PROCEDURAL HISTORY

         {¶2} We recount the facts and procedural history as set forth in Appellant's previous appeal to this court in State v. Delawder, 4th Dist. Scioto No. 10CA3344, 2012-Ohio-1923 ("Delawder I"), ¶¶ 7, 8, and 9. A grand jury indicted Delawder on two counts of aggravated felony murder, felony murder, aggravated robbery, robbery, and felonious assault, naming Jotham Lee Parker as the victim for each count. The grand jury also indicted Delawder on two counts of felonious assault, naming Kyle McCleese and Chad McGlone as victims, and on other charges not relevant to the current appeal.

         {¶3} Delawder and two cousins went to a bar called the Fish Bowl around 10:00 pm. Also at the bar that evening were regular patrons Parker (the decedent), McCleese, McGlone and Justin Preston. Initially, a disturbance broke out involving another patron named Richard Spencer and some of the other customers, possibly including Parker and/or his friends. Spencer had to be removed from the bar. Later, a bartender who had served Delawder earlier that evening went outside to smoke and saw an individual she identified as Delawder breaking into Parker's vehicle. The bartender alerted Parker and his friends, who confronted the individuals they felt were breaking into the truck. Upon being confronted, Delawder and his companion, later discovered to be his cousin Calvin Dwayne Kersey, Jr., ("Kersey"), fled the scene with Parker and his comrades in hot pursuit. Delawder then ran to the residence where he was staying with relatives. A struggle ensued and Delawder mortally stabbed Parker with a knife while the two men were engaged in a scuffle. Delawder then ran into the house and his relatives threatened to call the "cops" on Parker and his friends. Shortly after, Delawder reappeared with a black object, later described as a metal tire tool or "pipe," and began swinging it at his pursuers. Delawder did not hit anyone with the object but his attempts caused the others to back off. Delawder eventually disappeared into the house. When the police arrived, they found Delawder hiding in a bathroom where he had changed clothes and was attempting to shave his head.

         {¶4} Delawder's version of the events was that he entered Parker's truck by mistake, believing it to be his cousin's truck, in which he had ridden to the bar. He initially told police he ran because he felt the group chasing him was angry at him for "flirting with their women" in the bar. However, at trial he claimed he ran because the men chasing him had been involved in the earlier incident in the bar with Spencer. He also claimed he acted in self-defense when he stabbed Parker, who was violently assaulting him in the yard of his relatives. He indicated the relatives felt threatened by Parker and his friends, so he went after them with the tire tool to protect his relatives. He testified he "didn't know why" he had started to shave his head.

         {¶5} A jury found Delawder guilty of various offenses stemming from the incident. In his direct appeal, he raised several assignments of error including the failure to merge certain allied offenses for purposes of sentencing. We sustained his assignments of error as to the allied offenses argument and remanded the matter for resentencing. The Supreme Court of Ohio did not allow further appeal. See State v. Delawder, 132 Ohio St.3d 1516, 2012-Ohio-4021, 974 N.E.2d 113 (Table).

         ASSIGNMENTS OF ERROR

         I. THE TRIAL COURT ERRED IN DENYING DELAWDER'S MOTION FOR LEAVE TO FILE MOTION FOR NEW TRIAL.

         II. THE TRIAL COURT ERRED IN DENYING DELAWDER'S MOTION FOR LEAVE TO FILE PETITION FOR POST-CONVICTION RELIEF.

         {¶6} Because Appellant's grounds for relief under both assignments of error are identical in that his claims are premised on asserted newly discovered evidence not previously available to him, we will consider both assignments of error jointly.

         STANDARD OF REVIEW

         1. Motion for leave to file ...


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