STATE OF OHIO v. RICHARD BARROW
No. 103331
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 5, 2016
2016-Ohio-2839
KEOUGH, P.J.; S. GALLAGHER, J., and CELEBREZZE, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-13-577219-A
Richard Barrow, pro se
No. A653549
Mansfield Correctional Institution
1150 N. Main Street
Mansfield, Ohio 44903
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Anthony Thomas Miranda
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Richard Barrow, pro se, appeals from thе trial court‘s judgment denying his motion for leave to file a motion for a new trial. We affirm.
I. Background
{¶2} Barrow was convicted of attempted murder and having a weapon while under disability and sentenced to nine years incarceration. Barrow appealed his convictions, challenging the manifest weight and sufficiency of the evidence. This court affirmed. State v. Barrow, 8th Dist. Cuyahoga No. 101356, 2015-Ohio-525. Barrow subsequently moved to reopen his appeal, which this court denied.
{¶3} On June 29, 2015, Barrow filed a motion pursuant to
II. Analysis
{¶4} A
Crim.R 33(A)(6) permits a convicted defendant to file a motion for a new trial upon grounds thаt new evidence material to the defense has been discovered that the defendant could not with reasonable diligence have discovered and produced at triаl.
Pursuant to
A defendant is entitled to a hearing on his motion for leave if he submits “documents that on their face support his claim that he was unavoidably prevented from timely discovering thе evidence” at issue. State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, 869 N.E.2d 77, ¶ 19 (2d Dist.). Although a defendant may file his motion for a new trial along with his request for leave to file such motion, “the trial court may not
State v. Brown, 8th Dist. Cuyahoga No. 95253, 2011-Ohio-1080, ¶ 12-14.
{¶5} Barrow argues on appeal that the trial court erred in denying his motion for leave to file a motion for a new trial because it (1) did not consider the sworn affidavit attached to his motion in which he set forth the details of trial counsel‘s failure to forward the case filе and trial transcripts to him, (2) did not conduct an evidentiary hearing regarding his motion, and (3) did not make findings of fact and conclusions of law when it denied his motion. We find no abuse of discretion in the triаl court‘s denial of Barrow‘s motion.
{¶6} First, Barrow produced no new evidence. Although Barrow‘s motion referenced a “notarized affidavit,” the record contains no such affidavit, either attached to Barrow‘s motion for leave or filed separately. There were two documents attached to Barrow‘s motion: (1) a letter to Barrow from appеllate counsel dated September 26, 2014, indicating that appellate counsel had emailed Barrow trial transcripts; and (2) a letter from Barrow to “To Whom It May Concern” datеd December 14, 2014, requesting that a grievance be filed against his trial counsel. These documents do not contain any new evidence material to Barrow‘s guilt or innocence that could have changed the outcome of the trial; they merely demonstrate when Barrow received the trial transcripts and that he
{¶7} Barrow‘s brief on appeal contains a copy of an affidavit by Barrow in which he avers that (1) he did not receive the trial transcripts until September 26, 2014, (2) his trial counsel withdrew from his case without written notification and without providing his case file to Barrow, (3) he was initially denied library access in prison, (4) he was delayed in noticing “рrosecutorial misconduct during opening statements by the state,” and (5) appellate counsel was ineffective. However, even if this affidavit had been attached to Barrow‘s motion for leave and reviewed by the trial court, the affidavit merely gives information regarding why Barrow did not file a motion for a new trial at an earlier date. As with the other two documents attached to Barrow‘s motion, the affidavit contains no new evidence material to Barrow‘s guilt or innocence. Accordingly, because Barrow produced no nеw evidence, the trial court did not abuse its discretion in denying his motion for leave to file a motion for a new trial.
{¶8} Likewise, the trial court was not required to hold an evidentiary hearing bеfore ruling on Barrow‘s motion. To show that an evidentiary hearing regarding the newly discovered evidence is warranted, a defendant must show that the newly discovered evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discоvered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach
{¶9} Barrow‘s “newly discovered evidence” of “рrosecutorial misconduct, ineffective assistance of counsel, trial court abuse of discretion, unfair prejudice, [and] improperly admitted other acts evidencе” does not meet this standard. None of these alleged errors constitute newly discovered evidence; they are merely alleged errors regarding what happened at trial. Indeed, Barrow asserts that he discovered evidence of these alleged errors in the trial transcripts. Because, by Barrow‘s own admission, these alleged errors are apparent from the trial transcripts, they could have been raised on direct appeal. Res judicata bars the assertion of claims from a valid, final judgment of conviction that have been raised or could have been raised on direct appeal. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. Because these alleged errors could have beеn but were not raised on direct appeal, they are now barred by res judicata.1
{¶10} Finally, a trial court has no duty to issue findings of fact or conclusions of law when it denies a
{¶12} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The сourt finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgmеnt into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR