State v. PealsState v. Peals
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Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.
Deborah Kovac Rump, for appellant.
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COSME, J.
{¶ 1} This appeal arises from the trial court‘s dismissal of appellant‘s delayed motion for a new trial on charges of aggravated murder and kidnapping, which was
I. BACKGROUND
{¶ 2} On November 19, 2003, appellant, Earnest Lorenzo Peals, was found guilty by the Lucas County Court of Common Pleas of aggravated murder and kidnapping and sentenced to life imprisonment with the possibility of parole after 23 years. At trial, the state presented evidence that the victim, L.C. Pittman, had been shot a total of eight times, including four times in the head, with two different caliber weapons, a .22 revolver and a .380 handgun. As relevant here, the state adduced testimony from co-defendants Michael Peals, Kevin Jordan, and Dario Williamson, who all testified pursuant to cooperation agreements with the state that appellant shot Mr. Pittman two or three times in the head with the .380 handgun after Michael Peals had shot him several times with the .22 revolver. Finding that the trial court‘s verdict was not against the manifest weight of the evidence, this court affirmed the trial court‘s decision in State v. Peals, 6th Dist. No. L-03-1355, 2006-Ohio-591.
{¶ 3} Approximately six years later, on August 26, 2009, appellant filed a “Motion for New Trial Date.” Attached to appellant‘s motion were the affidavits of Michael Peals, dated June 15, 2009, and Dario Williamson, dated June 22, 2009, in which they recanted their trial testimony and attested that Michael Peals alone shot Mr. Pittman eight times with the two different weapons. As revised, the testimony of these witnesses now corresponds to appellant‘s version of the events that his brother Michael had shot Pittman first with his own .22 revolver, then disarmed appellant of his .380 handgun and shot Pittman with that weapon as well.
{¶ 4} On November 2, 2009, appellee moved to dismiss appellant‘s motion for a new trial on grounds that it failed to satisfy the requirements of
{¶ 5} On November 6, 2009, appellant responded to appellee‘s motion to dismiss by submitting an affidavit from his attorney, which stated, “I received this information almost six years after the trial verdict. These affidavits [from Michael Peals and Dario Williamson] were not solicited by me and I did not prepare the affidavits.” On November 12, 2009, appellee filed a supplemental memorandum, arguing that the affidavit of appellant‘s attorney is inadequate for purposes of
{¶ 6} On January 13, 2010, the trial court journalized its order granting appellee‘s motion to dismiss, finding that appellant had “failed to show by clear and convincing proof that this information could not have been discovered in the exercise of reasonable diligence within one hundred twenty days of the date of the verdict.” The cause is now before this court upon appeal from that judgment.
II. UNAVOIDABLE DELAY
{¶ 7} In his first assignment of error, appellant maintains:
{¶ 8} “The trial court abused its discretion by dismissing Appellant‘s motion for a new trial without a hearing.”
{¶ 9} Appellant argues that the affidavits attached to his motion “were not solicited by trial counsel, they were spontaneously sent to him by Michael Peals and Williamson.” He contends that recanted testimony is “implicitly” undiscoverable until such time as the witness decides to “do the right thing.” Thus, appellant asserts, the trial court should have held an evidentiary hearing “on the merits to allow Peals to further develop the record” or at least to “address why [the recantations] hadn‘t been available during trial.”
{¶ 10} We emphasize at the outset that the merits of appellant‘s motion for new trial are not before us. We are not concerned, therefore, with questions of whether the
{¶ 11}
{¶ 12} “(A) Grounds
{¶ 13} “A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights:
{¶ 14} “* * *
{¶ 15} “(6) When new evidence material to the defense is discovered which the defendant could not with reasonable diligence have discovered and produced at trial. When a motion for new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given * * *.
{¶ 16} “(B) Motion for new trial; form, time
{¶ 17} “* * *
{¶ 18} “Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days after the day upon which the verdict was rendered, or the decision of the court where trial by jury has been waived. If it is made to appear
{¶ 19} Pursuant to
{¶ 20} “‘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. Morgan, Shelby App. No. 17-05-26, 2006-Ohio-145, 2006 WL 93108. ‘[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 for new trial and could not have learned of the existence of that ground within the time prescribed for filing the motion for new trial in the exercise of reasonable diligence.’ State v. Walden (1984), 19 Ohio App.3d 141, 145-146, 19 OBR 230, 483 N.E.2d 859.”
{¶ 21} A trial court may not, therefore, “consider the merits of the motion for a new trial until it makes a finding of unavoidable delay.” State v. Lanier, 2d Dist. No. 2009 CA 84, 2010-Ohio-2921, ¶ 17. In other words, “unless a trial court has granted a defendant leave to file a delayed motion for new trial, the motion for a new trial is not properly before the court.” State v. Clumm, 4th Dist. No. 08CA32, 2010-Ohio-342, ¶ 26. See, also, State v. Dawson (2000), 89 Ohio St.3d 1208 (Lundberg Stratton, J., concurring in court‘s sua sponte dismissal of certified conflict).
{¶ 22} Most courts, including this court, also require defendants to file a motion for leave within a reasonable time after discovering the evidence. State v. Grinnell, 10th Dist. No. 09AP-1048, 2010-Ohio-1048, ¶ 12; State v. Unsworth, supra, 2010-Ohio-398, ¶ 18; State v. Brown, 186 Ohio App.3d 309, 2010-Ohio-405, ¶ 24; State v. Willis, supra, 2007-Ohio-3959, ¶ 20; State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 37.
{¶ 23} The decision whether to grant or hold an evidentiary hearing on a defendant‘s request for leave to file a delayed motion for new trial falls within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. State v. Cleveland, 9th Dist. No. 08CA009406, 2009-Ohio-397, ¶ 54; State v. Bush, 10th Dist. No. 08AP-627, 2009-Ohio-441, ¶ 9; State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, ¶ 19; State v. Gray (Apr. 13, 1995), 8th Dist. No. 67574. Courts generally hold that a defendant is entitled to an evidentiary hearing on the issue of unavoidable delay where the defendant‘s motion for leave includes “‘documents that on
{¶ 24} In this case, appellant never requested leave to file a delayed motion for new trial. He merely filed a motion for new trial accompanied by the recanting affidavits of Michael Peals and Williamson, without offering any evidence or argument in regard to the issue of unavoidable delay. Nothing in those affidavits explains when or why the affiants decided to recant their trial testimony, whether appellant played a role in that decision, or whether and at what point appellant learned of their willingness to come forward with the new testimony. As succinctly stated by appellant himself, “We have nothing but two affidavits, and no context to place them in * * *.”
{¶ 25} Appellant seems to argue that the dates of the recanting affidavits are themselves prima facie evidence of unavoidable delay, since they were spontaneously sent to his trial counsel by Michael Peals and Williamson. Appellant‘s assertion that the affidavits were forwarded by the witnesses themselves is belied, however, by the
{¶ 26} Appellant was given ample opportunity to provide such information to the trial court after the state pointed out its motion to dismiss that appellant had failed to address the issue of unavoidable delay. In response to the state‘s motion to dismiss, however, appellant did not attempt to provide any meaningful information in regard to the circumstances of the recantations or otherwise explain how they came to light. Appellant did not submit supplemental affidavits of the witnesses in regard to the issue of unavoidable delay, did not file an affidavit of his own claiming lack of prior knowledge of the recantations or otherwise explaining when or how he first acquired knowledge that the witnesses would come forward with their new testimony, and never requested a
{¶ 27} Under these circumstances, we cannot say that the trial court abused its discretion in dismissing appellant‘s motion for new trial without holding a hearing on the issue of unavoidable delay. Cf. State v. Diaz (Oct. 16, 1984), 10th Dist. No. 83AP-1102 (“we cannot find that the trial court erred in not conducting an evidentiary hearing since none was specifically requested, and counsel did not offer evidence when afforded an opportunity to support his motion, and counsel did not object when the trial court proceeded to rule on the motion without receiving evidence“).
{¶ 28} Accordingly, appellant‘s first assignment of error is not well-taken.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
{¶ 29} In his second assignment of error, appellant asserts:
{¶ 30} “Trial counsel provided ineffective assistance of counsel by his repeated failure to address the requirement that Appellant establish the evidence could not have reasonably been discovered during trial.”
{¶ 31} Appellant is claiming ineffective assistance of counsel because both his initial delayed motion for new trial and his response to the state‘s motion to dismiss failed to include sufficient evidence or documentation to support a finding of unavoidable delay. According to appellant, “Counsel should have spoken with the affiants to determine why they prepared the affidavits and sent them to him. * * * It was incumbent [on counsel] to make some showing as to * * * why this evidence [of the witnesses’ untruthful trial testimony] lay dormant for 6 years.”
{¶ 32} It may or may not be the case that appellant‘s trial counsel failed to sufficiently investigate the matter and that such an investigation would have uncovered sufficient evidence to support a claim of unavoidable delay. However, the present record does not contain any evidence on these issues and, in the absence of such evidence, it is impossible for us to determine whether counsel was prejudicially ineffective in his representation of appellant. Thus, appellant‘s claim of ineffective assistance of counsel cannot be considered on this appeal because it is based on evidence dehors the record. State v. Taylor, 6th Dist. No. H-08-026, 2009-Ohio-6496, ¶ 32; State v. Elkins, 6th Dist. No. S-08-014, 2009-Ohio-2602, ¶ 39; State v. Davis, 6th Dist. No. L-05-1056, 2006-Ohio-2350, ¶ 21. See, also, State v. Cooperrider (1983), 4 Ohio St.3d 226, 228.
{¶ 33} Accordingly, appellant‘s second assignment of error is not well-taken.
IV. CONCLUSION
{¶ 34} The judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
JUDGE
Keila D. Cosme, J.
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.