State v. GrahamState v. Graham
OPINION
{¶ 1} Defendant-Appellant, Nathan A. Graham, appeals a judgment of the Hancock County Court of Common Pleas, denying his motion for a new trial and his motion to vacate or set aside conviction. On appeal, Graham asserts that the trial court erred by applying an incorrect legal standard to his claim under Bradyv. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, that the trial court erred in finding that he was not unavoidably prevented from obtaining the evidence upon which his motions were based and that he was sentenced in violation of Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531. Finding that both Graham‘s motions for a new trial and his motion to vacate or set aside conviction are out of rule and that Blakely does not apply to Ohio‘s sentencing scheme, we affirm the judgment of the trial court.
{¶ 2} On February 23, 1999, Graham was involved in the kidnapping, beating and rape of thirteen year old Chantel Chaffin. Following the beating, which took place over several hours, Chaffin was left in the bottom of a cistern under bricks and other debris. Several hours later, Graham removed Chaffin from the cistern, planning to take her to another party as a “treat” for the other party guests and killing her thereafter. Chaffin was found by law enforcement at Graham‘s home while executing a search warrant.1
{¶ 3} Subsequently, Graham was charged in a sixteen count indictment. At Graham‘s request five court appointed attorneys were removed, and Graham roceeded to trial pro se. He was ultimately found guilty of one count of attempted murder in violation of
{¶ 4} In November of 2001, this Court affirmed Graham‘s convictions and sentence in State v. Graham, 3d Dist. No. 5-01-01, 2001-Ohio-2327.
{¶ 5} In March of 2003, Graham filed a pro se motion for a new trial pursuant to
{¶ 6} In March of 2005, the trial court filed an opinion overruling and/or denying all of Graham‘s pending motions and pleadings. In its judgment, the trial court found that Graham‘s motion for a new trial was not timely filed and that Graham‘s motion to vacate or set aside convictions under
{¶ 7} It is from this judgment Graham appeals, presenting the following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN APPLYING ANINCORRECT LEGAL STANDARD TO APPELLANTS (sic.) “BRADY” CLAIMS, ANDIN FAILING TO GRANT RELIEF THEREUPON: DENYING APPELLANT DUEPROCESS OF LAW.
Assignment of Error No. II
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DETERMININGTHAT APPELLANT DID NOT DEMONSTRATE BY CLEAR AND CONVINCING PROOFTHAT HE WAS UNAVOIDABLY PREVENTED FROM OBTAINING THE EVIDENCEUPON WHICH HIS CLAIMS RELY, WITHIN THE 120 DAY PERIOD FOR A NEWTRIAL MOTION, OR WITHIN THE 180 DAY PERIOD FOR A POST CONVICTIONPETITION, DENYING APPELLANT DUE PROCESS OF LAW.
Assignment of Error No. III
THE TRIAL COURT ERRED AS A MATTER OF LAW IN REFUSING TOCORRECT THE ILLEGAL SENTENCE IN VIOLATION OF THE SIXTH AMENDMENT,WHICH DENIED APPELLANT DUE PROCESS OF LAW.
Assignments of Error Nos. I II
{¶ 8} In the first assignment of error, Graham asserts that the trial court applied an incorrect legal standard to hisBrady claims. In the second assignment of error, Graham asserts that the trial court erred in finding that he did not demonstrate by clear and convincing evidence that he was unavoidably prevented from obtaining the evidence upon which his claims relied. Because these assignments of error are interrelated, we will address them together.
{¶ 9}
When new evidence material to the defense is discovered, whichthe defendant could not with reasonable diligence have discoveredand produced at the trial. When a motion for a new trial is madeupon the ground of newly discovered evidence, the defendant mustproduce at the hearing on the motion, in support thereof, theaffidavits of the witnesses by whom such evidence is expected tobe given, and if time is required by the defendant to procuresuch affidavits, the court may postpone the hearing of the motionfor such length of time as is reasonable under all thecircumstances of the case. The prosecuting attorney may produceaffidavits or other evidence to impeach the affidavits of suchwitnesses.
{¶ 10}
Motions for new trial on account of newly discovered evidenceshall be filed within one hundred twenty days after the day uponwhich the verdict was rendered, or the decision of the courtwhere trial by jury has been waived. If it is made to appear byclear and convincing proof that the defendant was unavoidablyprevented from the discovery of the evidence upon which he mustrely, such motion shall be filed within seven days from an orderof the court finding that he was unavoidably prevented fromdiscovering the evidence within the one hundred twenty dayperiod.
In order to be able to file a motion for a new trial based on newly discovered evidence beyond the one hundred and twenty days prescribed in the above rule, a petitioner must first file a motion for leave, showing by “clear and convincing proof that he has been unavoidably prevented from filing a motion in a timely fashion.” State v. Neace, 3d Dist. No. 10-99-07, 2000-Ohio-1649; State v. Smith (Mar. 27, 1998), 2d Dist. No. 97 CA 46. The filing of a motion for leave prior to being able to file a motion for a new trial out of rule was recognized by Justice Stratton in a concurring opinion dismissing sua sponte a motion to certify conflict. See State v. Dawson (2000), 89 Ohio St.3d 1208.
{¶ 11} An appellate court reviews a trial court‘s determination of a
{¶ 12} Upon review of the record, it is clear that Graham did not file a request for leave to file his motion for a new trial under
{¶ 13} Considering Graham‘s motion to vacate or set aside conviction pursuant to
{¶ 14} As set forth in
{¶ 15}
{¶ 16} Upon review of the record, we cannot find that the trial court abused its discretion in finding that Graham‘s motion was out of rule. First, he is clearly beyond the one hundred and eighty days. Furthermore, upon review of the record, we find that Graham has failed to show that he was unavoidably prevented from discovering the facts upon which he relies for his Brady claims. Finally, because Brady is not a new constitutional right, Graham could have raised that issue on appeal. The doctrine of res judicata precludes any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial or on an appeal from that judgment. State v. Perry (1967), 10 Ohio St.2d 175, para. four of the syllabus. Thus, the trial court properly denied Graham‘s motion to vacate or set aside conviction.
{¶ 17} Based on the foregoing, the second assignment of error is overruled.
{¶ 18} Having found that both Graham‘s motion for a new trial and his petition for post conviction relief are out of rule, we find that the trail court‘s analysis of the Brady issues to be superfluous. Therefore, based upon our finding that the trial court did not abuse its discretion in finding Graham‘s motions to be out of rule, we find it unnecessary to address the first assignment of error. As such, the first assignment of error is overruled.
Assignment of Error No. III
{¶ 19} In the third assignment of error, Graham asserts that his sentence should be vacated under Blakely v. Washington, 542 U.S. 296. This Court has previously ruled that the holding inBlakely does not apply to Ohio‘s sentencing scheme. Trubee, 2005-Ohio-552, at ¶ 16-38. Accordingly, Graham‘s third assignment of error is overruled.
{¶ 20} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed.
Bryant, P.J., and Shaw, J., concur.