IN THE SUPREME COURT OF OHIO

O-RSTATE OF OHIO,

Plaintiff-Appellee,

-vs-

05 4

ON APPEAL FROM THELORAIN COUNTY COURT OFAPPEALS NINTH APPELLATEDISTRICT:

COURT OF APPEALS CASENO. 12CA010256

BENSON DAVIS,

Defendant-Appellant,

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT BENSON DAVIS

BENSON DAVIS, #294-525Richland Correctional Institution1001 Olivesburg Rd.P.O. Box 8107Mansfield, Ohio 44901

PRO SE DEFENDANT-APPELLANT:

DENNIS D. WILLLORAIN COUNTY PROSECUTOR225 Court StreetJustice Center, 3rd floorElyris, Ohio 44035

COUNSEL FOR APPELLEE:

REEVEDAPR 0 4 2013

CLERK OF COURTSUPREME COURT OF OHIO

"^' r' ^A^4„ .4 ?Q13I.ALERK OF COURT,"k D^^^ P-WR'l OF OHIO

TABLE OF CONTENTS

PAGE NOS.

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREATGENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONALQUESTION ...............................................................1

STATEMENT OF THE CASE ................................................. 3

STATEMENT OF THE FACTS ................................................ 4

FIRST PROPOSITION OF LAW ............................................... 7

Appellant was denied a fair trial where the prosecutor intentionallysuppressed exculpatory evidence favorable to the defense.

SECOND PROPOSITION OF LAW ..............................................8

Appellant was denied the effective assistance of trial counsel where counselintentionally suppressed exculpatory evidence favorable to the defense.

THIRD PROPOSITION OF LAW ....................................... .. ..... 9

Appellant was denied his fourteenth amendment due process right to a fair hearingwhere the Court failed to determine if the new evidence demonstrated actual andfactual innocence and raised sufficient doubt as to the question of guilt toundermine confidence in the verdict.

FOURTH PROPOSITION OF LAW ..............................................10

Appellant was denied the fourteenth amendment due process right to a fair hearingwhere the Court refused to apply the Ruling made in Cleveland v. Bradshaw, 693 F.3d626 regarding the sworn affidavit of William Avery Jr.

CONCLUSION..... .. ................................................................... 10

CERTIFICATE OF SERVICE .............................................................. 10

APPENDIX: Journal Entry and Opinion (State v. Davis, Case No. 12CA010256

-i-

TABLE OF AUTHORITY

Cleveland v. Bradshaw, 693 F.3d 626Brady v. Maryland, 373 U.S. 83McCleskey v. Zant, 499 U.S. 467Reynoso v. Giurbino, 462 F.3d 1099Strickland v. Washington, 466 U.S. 668Smith v. Cain, 132 U.S. 627State v. George, 50 Ohio App. 2d 297U.S. v. Bagley, 473 U.S. 667

Ohio RevisedOhio RevisedOhio RevisedCrim.R. 33

Code 2903.01Code 2903.11Code 2945.79

Page No.

108

9093

81

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EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC ORGREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL

CONSTITUTIONAL QUESTION

This case involves issues of public and great general interest, and

raises several novel and substantial Constitutional questions. The issues

here are:

(1) This case involves one of the most basic fundamental principles of

law. The issue is whether a defendant is denied a fair trial where the

prosecuting attorney intentioanlly suppressed exculpatory evidence that

is clearly favorable to the defense. In this case, the prosecutor

knowingly withheld an Internal Investigation Report conducted by the

Lorain County Sheriff's Department regarding allegation made by William

Avery Jr., that he had been threatened by one of the co-defendant's while

he was in the County Jail. As a result of the alleged threat, he refused

to testify at the first trial. The investigation report findings

concluded that Mr. Avery had lied about being threatened, found him guilty

of lying, sentenced him to segregation. Nevertheless, the prosecutor

failed to provide the defense with this document, and as a result,

Mr. Avery testified to this falsehood with the defense being allowed to

impeach his testimony.

(2) Also, this cause involves a substantial Constitutional question and

is of public and great general interest. The issue is whether trial

counsel is ineffective when he intentionally suppressed exculpatory evidence

-1-

that is favorable to the defense. In this case, trial counsel withheld

and/or suppressed the evidence of AT&T Phone records that would have

supported witness testimony that the defendant made several call from

New York to Ohio before , on, and after the day of the murder. It was

alleged by trial counsel that the phone records were lost when someone

took the records from his car.

(3). In addition, this case gives rise to an issue of public and great

general interest and involves a substantial constitutional question. The

issue is when the state's only eyewitness to the murder recants his

testimony in a sworn affidavit attesting to the fact that his testimony

was false and that he intentionally lied on the defendant, that he

never witnessed the murder, nor did he ever witness the defendant commit

an assault against the victim, and that he was threatened by his father

to testify falsely against the defendant, is the defendant entitled to

a new trial?

(4). Furthermore, this case is of public and great general interest and

does involve a substantial constitutional question. The cause of this

issue is the claim of Actual and Factual innocence. The only evidence

against the defendant in this case relates to the testimony of William

Avery Jr., stating that he witnessed the defendant murder the victim.

However, he has since recanted that testimony with a sworn affidavit

stating that he lied about the crime, that he never witnessed the

defendant murder the victim, and that he was threatened by his father

to testify falsely against the defendant. Is this evidence sufficient

for a new trial?

(5). Finaly, this case gives rise to an issue of public and great general

interest and involves a substantial constitutional question. The issue

is whether the principle of stare decision limited the appellate court's

power of disposition? Furthermore, the cause is whether the tri-al court

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and the court of appeals ignored precedent. In common law the doctrine

of stare decision states that legal decisions are binding and shall not

be reversed.

STATEMENT OF THE CASE

On September 25, 1991, the appellant herein, was indicted by the

Lorain County, Ohio Grand jury on one (1) count of felonious assault in

violation of R.C. §2903.11(A)(1). On April 27, 193, appellant was

indicted by the Lorain County, Ohio Grand jury for one (1) count of

Aggravated Murder in violation of R.C §2903.01(A). The charges were

consolidated for purposes of jury trial. On September 22, 1994, appellant

was found guilty of both counts. Appellant was sentenced to consecutive

terms of incarceration from life imprisonment on the aggravated murder

count, and 8 to 15 years on the felonious assault count.

Appellant filed a timely direct appeal to the court of appeal of

Ohio, Ninth Appellate District on October 19, 1994, in which the decision

of the lower court was affirmed. The appellant also filed an appeal to

the Ohio Supreme Court, in which jurisdiction was denied.

On June 1, 2012, appellant filed a Motion for leave to file Motion

for New Trial pursuant to Crim.R. §33, and R.C. §2945.79(F)-§2945.79(B),

and Smith v. Cain, 132 S.Ct. 627, with the Common Pleas Court of Lorain

County. On June 21, 2012, the trial court denied the Motion without

opinion.

-3-

In August of 2012, the appellant filed an appeal in the Ninth

Appellate District arguing that the trial court denied him due process

and the right to a fair hearing, and abused its discretion in denying

the Motion without opinion. On narch 11, 2013, the Court of Appeals

affirmed the decision of the lower court.

Appellant now files his timely appeal requesting Exceptance of

Jursidiction.

STATEMENT OF THE FACTS

A. The charges against appellant arose from the death of the victim,

Marsha Blackely, on August 8, 1991. r

1. On August 8, 1992, detective Taliano and Resendez reported to the scene where the

deceased victims body was found. Upon arriving at the scene, officer Taliano interviewed

four witnesses who identified the victim as Marsha Blakely. The four witnesses informed

the detective where she lived.

2. The police reports detailed that as a result of the information received& from the

four individuals, they proceeded to the apartment of the victim where they found the

door ajar. Officer Resendez took photo's of the apartment.

3. At the apartment, no broken dishes were found, and no blood was found. No debris

or breakage was noted. The apartment was secured and the locks changed the next day.

The officers went back to the apartment several more time to find blood samples or

other trace fibers, however, none could be located.

4. The autopsy performed on the victim revealed the cause of death, and opinioned that

she had died between midnight and four o'clock (4:00 am; August 8, 1991. The physical

evidence did not reveal any information about the identity of the perpetrator whom

committed the murder.

-4-

5. After interviewing many people in the neighborhood, detective Taliano had no

leads. Detective Taliano then contacted Crime Stoppers of Cuyahoga County for assistance

in putting up a reward. When the Crime Stoppers offered no help, the Lorain County

Prosecutor office proferred a $2000 reward.

6. On September 10, 1991, detective Taliano was contacted by William Avery Sr., an

individual known to the police as a prior informant. Avery Sr., was told that no

reward would be paid unless an eyewitness came forward. Accordingly, on September 11,

1991, William Avery Jr., met with detective Taliano stating that he was an eyewitness

to the beating of the victim, Marsha Blakely.

7. William Avery Jr., provided a statement, and given a polygraph test after providing

the statement. It was determined that William Avery Jr., was not being truthful, at

this point he admitted that he lied and then changed his original statement. Based on

the statement provided by William Avery Jr., the appellant and several other defendants

were indicted for Aggravated Murder.

8. During the co-defendant's trial (Lenworth Edwards), William Avery Jr., refused to

testify allegedly.;.because the prosecutor office refused to pay him the $10,000. he

demanded for his testimony.

9. Following Avery's refusal to testify, he was held in contempt of-court and taken

to jail, and order held until he agreed to testify. Upon agreeing to testify, Avery Jr.,

was released from jail. However, during the trial, he testified that his original

statement to police, and the statement provided during deposition, was false and

motivated solely by the prospect of receiving the reward money and that he lied about

everything.

10. At this point, a mistrial was declared, and Avery Jr., was charged with perjury

11. A second trial was conducted, in which William Avery Jr., testified. This time he

testified that the reason why he had stated that he-liedl.about the.facts was due to :;.,

being threatened by one of the co-defendant's (Lenworth Edwards) when he was placed in

jail for refusing to testify.

12. The appellant was found guilty of both counts and sentenced to life imprisonment.

13. Avery Jr., received $5000 dollars to testify and the perjury indictment was

dismissed when he testified that he had been threatened not to testify in the first

trial.

-5-

14. On October 13, 2011, throught making a formal request with the Clerk of Court

of the Supreme Court of New York, appellant was able to obtain AT&T phone records

that were submitted in the Writ of Habeas Corpus filed in the extradition request

hearing made by the State of Ohio regarding this case at bar.

15. During the extradition hearing, appellant argued that he was in the State of New

York during the Time frame of the Murder of Marsha Blakely, and that he made several

ohone calls from New York to Ohio to his girlfriend in Ohio from the listed phone

number cited in the AT&T records.

16. During trial, defense witness, Florence Michelle Brooks, testified that the

appellant had talked with her on the phone on August 8th and 9th of 1991 (T.O.P. 318-320).

17. In Novemeber of 2011, the appellant obtained from his co-defendant, Alfred Cleveland,

a police investigation report regarding the allegations made by William Avery Jr.,

testifying that the reason why he refused to testify during the first trial was due to

being threatened while being in the County Jail.

18. The County Jail conducted their own investigation into the allegation, and

concluded that William Avery Jr., lied about being threatened while being in the County

Jail.

18. The investigation report concluded that Mr. Avery had been escorted by Jail

guards everytime he was removed from the cell and that there was no way that he could

have been threatened by any inmate without staff not knowing. In fact, the investigation

panel found him guilty of lying and providing false information and sentenced him to

segregation.

19. This investigation report,was never provided to appellant or his counsel during

trial.

20. In November of 2011, appellant obtained a sworn affidavit from his co-defendant,

Alfred Cleveland, provided by William Avery Jr., stating that he never witnessed the

murder of Marsha Blakely, and that he was forced to lie on the defendant's by his

father whom threatened him, and that his testimony was motivated partly by the reward

money, and that everything he testified to regarding each defendant was completely false.

21. On June 21, 2012, appellant filed a Motion for Leave to file Delayed Motion for

New Trial. On June 21, 2012, the trial court denied the motion without opinion. The

appellant fiie a timely appeai to the Court of Appeals for Lorain County, Ninth

Appellant district. On March 11, 2013, the court of appeals affirmed the lower court

decision.

-6-

SUMMARY OF THE ARGUMENT

The critical issues herein involved in this appeal are (1) Whether the prosecutor

intentionally suppressed evidence favorable to the defense in violation of the Brady

Rule?; (2) Whether trial counsel denied appellant effective assistance of counseli

where counsel intentionally withheld evidence favorable to the defense?; (3) Whether

the suppression of evidence by both the prosecutor and defense counsel proves by

clear and convincing evidence that appellant was unavoidably prevented from discovering

the evidence within one hundred twenty day time frame established by Crim Rule 33(B)?

and (4) Whether the new evidence presented shows by clear and convincing standards

that the appellant is actually and factually innocent of all charges?

PROPOSITION OF LAW NO. #1:

APPELLANT WAS DENIED A FAIR TRIAL WHERE THE PROSECUTOR INTENTIONALLYSUPPRESSED EXCULPATORY EVIDENCE FAVORABLE TO THE DEFENSE, PURSUANT TOTHE HOLDING SET FORTH IN SMITH -vs- CAIN, 132 S.Ct. 627 AND PURSUANTTO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION:

It is the position of the appellant that the Prosecutor suppressed the following

evidence:

1. The internal investigation report conducted by the County SheriffDepartment regarding the allegations made by witness, William Avery Jr.,claiming that he had been threatened by co-defendant, Lenworth Edward,while being in the County Jail, and that this is the reason why he hadrefused to testify during the first trial;

2. This investigation report was conducted and concluded prior to thestart of the second trial and should have been disclosed to defensecounsel before trial;

3. The investigation report findings concluded that William Avery Jr.,lied and provided false statements regarding being threatened whilebeing in the County Jail. However, Mr. Avery Jr., was allowed totestify and make this statement during trial while the prosecutorknew this testimony to be false and failed to correct this testimony.

-7-

The crux of this argument relates to the claim that the prosecutor intentionally

suppressed excuplatory evidence favorable to the defense. The evidence at issue is

regarding an internal investigation report conducted by the Lorain County Sheriff's

department regarding allegations made by William Avery Jr., claiming that he had been

threatened by one of the co-defendants while being held in the County Jail not to

testify. The Lorain County Sheriff investigation review board found that Mr. Avery

had lied about being threatened and provided false information. As a result of the

findings, Mr. Avery was found guilty and sentenced to segregation.

Subsequently, William Avery Jr., still testified that he had refused to testify

in the first trial because he had been threatened by the co-defendant, while knowing

this testimony to be false. In fact, the prosecutor was aware and had in their

possession the investgation report finding William Avery Jr., guilty of making false

allegations of being threatened, however, not only did they fail to correct the false

allegation, but they withheld this documents from the defendant.

Pursuant to the holding set forth in Smith v. Cain, 132 S.Ct. 627, where the only

evidence in the State's case is central to one key witness, the failure to disclose

impeaching evidence violates the due process right to a fair trial, and violates the

holding set forth in Brady v. Maryland, 373 U.S. 83 (1963). Again, this evidence was

never disclosed to the defense, and this evidence was needed in order to challenge

William Avery Jr., allegations that he had been threatened not to testify, therefore,

he refused to testify. The prosecutor had a duty to disclose this information. See,

United States v. Bagley, 473 U.S. 667, 676 (1985).

PROPOSITION OF LAW NO. #2:

APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHERECOUNSEL INTENTIONALLY SUPPRESSED EXCULPATORY EVIDENCE FAVORABLE TOTHE DEFENSE:

It is contended by appellant that his trial counsel intentionally suppressed the

AT&T phone records. In fact, counsel personally had the phone records, showed the

records to be, and personally obtained the records from the Supreme Court in New York

city. However, counsel claimed that someone broke into the car and stole the phone

-8-

records, and that he was unable to reporduce copies of the records. Subsequently, he

did not file a theft report with the police, nor did he inform the trial judge of the

theft. Defense counsel just simply acted as if nothing never happened and like he

never had the records.

First, counsel had a legal duty not only to re-obtain the phone records, but, he

also had a legal duty to notify the court of the alleged theft, and make a reasonable

decision into an investigation on the matter. Strickland v. Washington, 466 U.S. 668.

This evidence is sufficient to support a claim of actual and factual innocence as it

relate to the appellant making phone calls from New York to Ohio during the time of

the murder. Counsel had a duty to present evidence that demonstrates his clientxs

factual innocence or that it raises sufficient doubt as to that question to undermine

confidence in the verdict. Reynoso v. Giurbino, 462 F. 3d 1099.

PROPOSITION OF LAW NO. #3:

APPELLANT WAS DENIED HIS FOURTEENTHAMENDMENT DUE PROCESS RIGHT TO A

FAIR HEARING WHERE THE COURT FAILED TO DETERMINE IF THE NEW EVIDENCE

DEMONSTRATED ACTUAL AND FACTUAL INNOCENCE AND RAISED SUFFICIENT DOUBT

AS TO THE QUESTION OF GUILT TO UNDERMINE CONFIDENCE IN THE VERDICT:

The crux of this issue relates to the new evidence provided by William Avery Jr.,

the State's only witness and only evidence in the case. William Avery Jr., has provided

a sworn affidavit attesting that he lied on the defendant's, that he never witnessed

the beating or murder of the victim, and that he was forced to testify falsely against

the defendant's by his father and the prosecutor, that his father is the person whom

committed the murder, and that his complete testimony was fabicated against the

defendant's and was completely false.

-9-

When the appellant presented this evidence to the Court, they ruled that this evidence

was not new, and did not support a finding of actual and factual innocence. In fact,

the court applied procedural bars to the proceeding.

Incarcerating an innocent person violates the Eighth Amendment right to be free

from cruel and unusual punishment and the Fourteenth Amendment right to due process.

Federal and State law dictates that a defendant who can show a truly persuasive

demonstration of actual innocence is entitled to post-conviction relief. Herrera v.

Collins, 506 U.S. 390. Nevertheless, the court in this case simply did not make a

determination of whether the evidence in question demonstrate an actual innocence

claim. They simply applied a procedural bar. The actions of the court is a

miscarriage of justice. Bonnell v. Mitchell, 2004 WL 214296 (N.D. Ohio 2004). The

failure to file Motion for New Trial timely should be excused if the defendant can show

that a miscarriage of justice would result from a failure to entertain the claim. See,

McCleskey.,v.--Zant, 499:-U.S. 467.

PROPOSITION OF LAW NO. #4:

APPELLANT WAS DENIED THE FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO AFAIR HEARING WHERE THE COURT REFUSED TO APPLY THE RULING SET MADE INCLEVELAND v. BRADSHAW, 693 F.3d 626 (6th Cir 2012) REGARDING THESWORN AFFIDAVIT OF WILLIAM AVERY JR.;

It is contended by appellant that the Court of Appeals, despit a Judicial Notice,

refused to apply the ruling made by the Sixth Circuit Federal Court of Appeals in

Cleveland v. Bradshaw, 693 F. 3d 626 (6th Cir. 2012), regarding William Avery's

affidavit recanting his testimony. The Sixth Circuit ruled that the recantation

affidavit of William Avery is reliable evidence to support the-claim of actual and

factual innocence, and is considered newly discovered evidence. However, the Court

-10-

of Appeal and the trial court refused to applythis ruling, and refused to consider

whether this evidence was sufficient. In faet,',the court of appeal ruled that the

affidavit was not newly discovered evidence and simply ignored precedent. The doctrine

of stare decision states that legal decisions are binding and shall not be reversed.

State v. George 50 Ohio App. 2d 297.

In Mooney v. Holohan, 294 U.S. 103, the Court held that where previously

undisclosed evidence reveals a conviction was based on perjured testimony, and the

prosecution knew, the conviction is fundamentally unfair. Further, the UNited States

Supreme Court has held that failure by the State to correct false evidence is

incompatible with "the rudimentary demands of justice." Napue v. Illinois, 360 U.S.

264.

CONCLUSION

This case raises a substantial constitutional question, involves a felony and

is one of great interest. Review should be granted in this dase.

IBENSON DAVIS, #294-525:Lzm^_2

Richland Correctional Inst.P.O. Box 8107Mansfield, Ohio 44901

CERTIFICATE OF SERVICE

I hereby certify that a true copy of this foregoing has been duly served upon

the Lorain County Prosecutor office, and to the Clerk of Court, on this 2_1_^' day

of 2013, by way of regular U.S. Mail.

Benson Davis

-11-

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STATE OF OHIO IN TH^ COURT OF APPEALS)ss: NINTH JUDICIAL DISTRICT

COUNTY OF LORMN._

STATE OF OHIO C:A. No. 12CA010256

Appellee M^^:^ ^ ; o-+ ; ^ ++1{^^ 4-~'^ 3^;3, ',fi.J'"3i ! 6^i^,ta,^^r` o atV. jr.z

IAN R. DAVIS

Appellant

Dated: March 11, 2013

Ai?^'''^AL FROM JUDGMENTENTERED IN THECOURT OF COMMON PLEASCOUNTY OF LORAIN, OHIOCASE Nos. 91 CR040924

93CR043666

DECISION AND JOURNAL ENTRY

MOORE, Presiding Judge.

{¶1} Defendant-Appellant, Ian R. Davis (a.k.a. Benson Davis), appeals from the

judgment of the Lorain County Court of Common Pleas which denied his motion for leave to file

a delayed motion for a new trial. We affirm.

1.

{1[2} In 1994, a jury convicted Mr. Davis of aggravated murder and felonious assault

for his participation in the brutal killing of Marsha Blakely. Based upon his convictions, the trial

court sentenced Mr. Davis to life imprisonment. Mr. Davis directly appealed, and this Court

affirmed the trial court's decision. See State v. Davis, 9th Dist. No. 94CA005989, 1996 WL

121998, * 1 (Mar. 20, 1996). In 1998, Mr. Davis filed a delayed motion for a new trial pursuant

to Crim.R. 33(A)(2) and (6). The trial court denied his motion and this Court affirmed the trial

court's decision because."[Mr.] Davis made no attempt to show the trial court why he was

2

unavoidably prevented from discovering the evidence before January 20, 1995." State v. Davis,

9th Dist. No. 98CA007062, 1999 WL 194473, * 1(Mar. 31, 1999).

{13} Approximately fourteen years later, Mr. Davis again moved the trial court for

leave to file a delayed motion for a new trial. He attached the following evidence in support of

his motion: (1) his own affidavit claiming innocence, (2) a copy of AT&T long distance

telephone records from New York State to Lorain, Ohio, dated June 27th to August 10th, without

any verifying information regarding the year these calls were made or the number from which

these calls were made, (3) a copy of an investigative report regarding inmate William Avery's

statements about a corrections officer allegedly allowing one of Mr. Davis' co-defendants to

threaten him in jail, and (4) the affidavit of William Avery, the State's witness, recanting his

former testimony that he witnessed Marsha Blakely's murder. The trial court denied Mr. Davis'

motion for leave to file a delayed motion for a new trial.

{1[4} Mr. Davis timely appealed, raising one assignment of error for our review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AND VIOLATED [] [MR. DAVIS'] FIFTH,SIXTH, AND FOURTEENTH AMENDMENT RIGHT[S] WHEN IT DENIED[] [HIS] MOTION FOR LEAVE TO FILE DELAYED MOTION FOR NEWTRIAL WITHOUT DETERMINING WHETHER [] [HE] : WASUNAVOIDABLY PREVENTED FROM DISCOVERING THE EVIDENCEWITHIN 120 DAYS OF THE JURY'S VERDICT AS MANDATED

PURSUANT TO CRIM.R. 33(B)[.]

{¶5} In his first assignment of error, Mr. Davis contends that the trial court erred in

denying his motion for leave to file a delayed motion for a new trial without first holding a

hearing to determine whether there was sufficient evidence to satisfy the unavoidable delay

standard. We disagree.

3

{¶6} A trial court's decision to grant or deny a motion for leave to file a delayed motion

for a new trial will not be reversed on appeal absent an abuse of discretion. State v. Holmes, 9th

Dist. No. 05CA008711, 2006-Ohio-1310, ¶ 8, citing State v. Schiebel, 55 Ohio St.3d 71 (1990),

paragraph one of the syllabus. "`Likewise, the decision on whether the motion warrants a hearing

also lies within the trial court's discretion."' Holmes at ¶ 8, quoting State v. Starling, 10th Dist.

No. O1AP-1344, 2002-Ohio-3683, ¶ 10, citing State v. Hensley, 12th Dist. No. CA2002-01-002,

2002-Ohio-3494, ¶ 7. An abuse of discretion implies that the court's attitude is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When

applying the abuse of discretion standard, an appellate court may not substitute its judgment for

that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

{¶7} Pursuant to Crim.R. 33(A)(6), a new trial may be granted on the motion of the

defendant "[w]hen new evidence material to the defense is discovered, which the defendant

could not with reasonable diligence have discovered and produced at the trial." Further, Crim.R.

33(B) states, in relevant part, that if the basis of the motion is newly discovered evidence, it:

shall be filed within one hundred twenty days after the day upon which the verdictwas rendered[.] If it is made to appear by clear and convincing proof that thedefendant was unavoidably prevented from the discovery of the evidence uponwhich he must rely, such motion shall be filed within seven days from an order ofthe [trial] court finding that he was unavoidably prevented from discovering theevidence within the one hundred twenty day period.

(Emphasis added.) Additionally, "` [c]lear and convincing proof requires more than a mere

allegation that a defendant has been unavoidably prevented from discovering the evidence he

seeks to introduce as support for a new trial."' State v. Gilcreast, 9th Dist. No. 26311, 2013-

Ohio-249, ¶ 4, quoting State v. Covender, 9th Dist. No. 07CA009228, 2008-Ohio-1453, ¶ 6,

quoting State v: Mathis, 134 Ohio App.3d 77, 79 ( lst Dist.1999), overruled on other grounds.

Finally, "[u]navoidable delay results when the party had no knowledge of the existence of the

4

ground supporting the motion for a new trial and could not have learned of the existence of that

ground within the required time in the exercise of reasonable diligence." Covender at ¶ 14,

quoting State v. Rodriguez-Baron, 7th Dist. No. 12-MA-44, 2012-Ohio-5360, ¶ 11.

{¶8} Here, Mr. Davis moved for leave to file a delayed motion for a new trial based

upon newly discovered evidence approximately 18 years after the verdict was rendered in this

matter. In his motion, Mr. Davis stated that he was unavoidably prevented from discovering the

new evidence because: (1) his trial counsel intentionally suppressed and/or withheld the AT&T

telephone records, and (2) the State intentionally withheld and/or suppressed the county jail's

investigative report with regard to whether the State's witness, William Avery, Jr., was

threatened by a co-defendant in this case. Also, according to Mr. Davis' affidavit, he obtained

the AT&T telephone records in October of 2011, by filing a request with the clerk of the

Supreme Court of New York County, and he received the jail's investigative report from a co-

defendant in November of 2011.

{¶9} First, the record clearly indicates that Mr. Davis was aware of the existence of the

AT&T telephone records during the 1994 trial because both he and his girlfriend testified that he

made these telephone calls from New York to Ohio on and after the date Marsha Blakely was

murdered. Further, in his affidavit, Mr. Davis states that his "trial counsel had [the phone

records] originally, but claimed that he lost this document and could not obtain it again."

Inasmuch as Mr. Davis obtained these telephone records in October of 2011 simply by

requesting them from the New York clerk of courts, we see nothing to indicate that he could not

have requested the records within one hundred and twenty days after the verdict was rendered.

Further, upon obtaining the AT&T telephone records, Mr. Davis waited an additional eight

months to file his motion.

5

{¶10} Although "Crim.R. 33(B) does not provide a specific time limit for the filing of a

motion for leave to file a delayed motion for new trial[,] *** Ohio courts have adopted a

reasonableness standard." State v. Cleveland, 9th Dist. No. 08CA009406, 2009-Ohio-397, ¶ 49.

"If there has been an undue delay in filing the motion after the evidence was discovered, the trial

court must determine if that delay was reasonable under the circumstances or that the defendant

has adequately explained the reason for the delay." (Internal quotations omitted.) Id. In the

present matter, Mr. Davis' motion and affidavit fail to provide clear and convincing proof as to

why he was unavoidably prevented from discovering the telephone records in a timely manner.

Also, Mr. Davis provides no explanation as to why it was reasonable for him to wait an

additional eight months to file his motion for leave after obtaining the telephone records.

{¶11} Second, the record indicates that Mr. Davis acquired both the jail investigative

report, and Mr. Avery's affidavit recanting his trial testimony in November of 2011. Although

the jail investigative report is dated December 23, 1991, and Mr. Avery's affidavit was signed in

February. of 2006, Mr. Davis claims that he did not obtain this evidence until 2011. Mr. Davis

does not provide clear and convincing proof as to why he was unavoidably prevented from

discovering this evidence in a timely manner. Further, Mr. Davis waited an additional seven

months after discovering this evidence to file his motion for leave. Again, Mr. Davis provides

no explanation regarding the reasonableness of his actions in waiting seven additional months to

file his motion.

{112} Based upon the record before us, we conclude that Mr. Davis did not meet his

burden of providing clear and convincing proof that he was unavoidably prevented from

discovering this evidence within the requisite time frame after the verdict was rendered, or that

he filed his motion for leave to file a delayed motion for new trial within a reasonable time after

6

obtaining the newly discovered evidence. Further, a hearing on the motion was not warranted

because the evidence, on its face, did not support Mr. Davis' claim that he was unavoidably

prevented from timely discovery of the evidence. See State v. Cleveland, 9th Dist. No.

08CA009406, 2009-Ohio-397, ¶ 54 (stating that the appellant was not entitled to a hearing on his

motion where he failed to "submit[] documents which, on their face, support his claim that he

was unavoidably prevented from timely discovering the evidence at issue."). Therefore, the trial

court did not abuse its discretion in denying Mr. Davis' motion without a hearing.

{¶13} We also note that Mr. Davis makes several arguments regarding the merits of his

delayed motion for a new trial, including: (1) prosecutorial misconduct (2) ineffective assistance

of trial counsel, and (3) the recantation of testimony. Because Mr. Davis' delayed motion for a

new trial is not properly before this court, we decline to address these arguments at this time.

{¶14} Mr. Davis' sole assignment of error is overruled.

III.

{115} In overruling Mr. Davis' sole assignment of error, the judgment of the Lorain

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

.. . .r P °• x.

7

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CARR, J.WHITMORE, J.CONCUR.

APPEARANCES:

IAN DAVIS, pro se, Appellant.

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,•. `^it•tl^'^/ ^-^t/t.^

CARLA MOOREFOR THE COURT

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant

Prosecuting Attorney, for Appellee.