State v. Graggs, 2014 Ohio 1195

Appellant was convicted in January 2009 of aggravated robbery, kidnapping, and two counts of aggravated murder in Brock's death.
This court affirmed the convictions on direct appeal in Graggs I, and appellant later challenged via post-conviction relief, denied.
In August 2013, appellant sought leave to file a motion for new trial based on newly discovered evidence, supported by three affidavits.
The core affidavits concern Bridges' statements about Brock’s presence and Lanier's drug dealing on the night of the murder.
The trial court denied the motion for leave, and appellant appeals pro se challenging the denial and merits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion denying leave to file a motion for new trial.	Graggs argues the court erred by denying leave based on lack of unavoidably prevented discovery.	Graggs contends the court could address merits after denying leave; evidence unlikely to change result.	No abuse; two-step procedure proper and evidence insufficient

State v. Bethel, 2010-Ohio-3837 (10th Dist. 2010) (two-step process for untimely Crim.R. 33 motions; must show unavoidably prevented discovery)
State v. Petro, 148 Ohio St. 505 (1947) (criteria for new-trial affidavits and materiality)
State v. Ambartsoumov, 2013-Ohio-3011 (10th Dist. 2013) (affidavits insufficient to show witnesses unknown or beyond defense investigation)
State v. Elersic, 2007-Ohio-3371 (11th Dist. 2007) (treatment of motion for leave and merits when asserted together)
State v. Stepherson, 2013-Ohio-5396 (10th Dist. 2013) (courts may address merits when ruling on leave; harmless error discussion)