[Cite as State v. Cannon, 2016-Ohio-3173.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103298



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                               DEMETRICE CANNON
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-574884-A

        BEFORE: Boyle, J., Jones, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: May 26, 2016
ATTORNEY FOR APPELLANT

Paul A. Mancino
Mancino Mancino & Mancino
75 Public Square Building
Suite 1016
Cleveland, Ohio 44113-2098


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Frank Romeo Zeleznikar
        Amy Venesile
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113

Scott Zarzycki
Assistant County Prosecutor
9300 Quincy Avenue, 4th Floor
Cleveland, Ohio 44106
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, Demetrice Cannon, appeals a judgment denying his

motion for leave to file a motion for a new trial (hereinafter referred to only as “motion

for a new trial”).   He raises one assignment of error for our review:

       Defendant was denied due process of law when his motion for leave to file
       a motion for a new trial based on newly discovered evidence was summarily
       overruled by the court.

       {¶2} Finding no merit to his appeal, we affirm.

I. Cannon Convicted

       {¶3} In October 2013, Cannon was convicted of murder and having a weapon

while under a disability.   The following relevant facts were presented at a bench trial.

       {¶4} Cannon and the victim were shooting dice together. Eventually, they got

into a verbal argument over money. Cannon left the area, but returned to the scene.

When he did, the victim was driving away.          Cannon ran after the victim’s car and

flagged him down.        Once again, Cannon and the victim began arguing.           Cannon

ultimately shot the victim, firing at least four shots at him. The victim died from the

gunshot wounds. The police found four shell casings at the scene.

       {¶5} Cannon initially told police that he was nowhere near the incident at the

time of shooting, and that he did not even know the victim. But at trial, two witnesses,

Demarco Parker and Brittany Baker-Terrell, rebutted those statements.            Parker and

Baker-Terrell testified that they saw Cannon shoot at the victim.
       {¶6} At trial, Cannon testified on his own behalf. He stated that he shot the

victim in self-defense, asserting that the victim shot at him first. Several witnesses

testified, however, that the victim did not have a firearm that evening.    Other witnesses

also testified that the victim did not shoot at Cannon.

       {¶7} The trial court sentenced Cannon to a total of 19 years to life in prison.

       {¶8} Cannon directly appealed his convictions, which this court affirmed.         See

State v. Cannon, 8th Dist. Cuyahoga No. 100658, 2014-Ohio-4801.

II.   First Petition for Postconviction Relief

       {¶9} While his direct appeal was pending, Cannon filed a petition for

postconviction relief, claiming his trial counsel was ineffective.    The trial court denied

his petition. This court affirmed the trial court’s decision, finding that he raised the

same claims in his direct appeal. State v. Cannon, 8th Dist. Cuyahoga No. 101733,

2015-Ohio-1543.

III.  Motion for New Trial Based on Newly Discovered Evidence: Trial
Witness Recants

       {¶10} Although Cannon titled his motion as a “motion for a new trial, or in the

alternative,” he only set forth the law and argument on his motion for a new trial.   In his

motion, he claimed that one of the key witnesses at his trial, Demarco Parker, had

recanted.   Cannon attached Parker’s affidavit to his petition.      Parker averred that he

was under duress by the victim’s family to say that Cannon shot the victim. Parker

further averred, “However, I never saw Demetrice Cannon shoot no one, and I did testify

to a lie that they wanted me to say.” Cannon asserted in his motion that he could not
have known this information previously, and that he was entitled to a new trial based on

this newly discovered evidence.

       {¶11} The trial court denied Cannon’s new trial motion without a hearing. It is

from this judgment that Cannon appeals.

IV.   Crim.R. 33

       {¶12} Cannon argues that he was denied due process of law without a hearing

when he presented evidence of “actual innocence” in his Crim.R. 33 motion for a new

trial based on newly discovered evidence.    Crim.R. 33, however, does not contemplate a

motion for a new trial on grounds of evidence demonstrating “actual innocence” apart

from the grounds set forth in Crim.R. 33(A)(6). Thus, a motion for a new trial based on

the premise of “actual innocence” must demonstrate the strong probability that the newly

discovered evidence would have led to a verdict of not guilty. State v. Jalowiec, 9th

Dist. Lorain No. 14CA010548, 2015-Ohio-5042, ¶ 30.

       {¶13} Crim.R. 33(A)(6) provides that “[a] new trial may be granted on motion of

the defendant for any of the following causes affecting materially his substantial rights”:

       When new evidence material to the defense is discovered which the
       defendant could not with reasonable diligence have discovered and
       produced at the trial. When a motion for a 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, and if time is required by the
       defendant to procure such affidavits, the court may postpone the hearing of
       the motion for such length of time as is reasonable under all the
       circumstances of the case. The prosecuting attorney may produce
       affidavits or other evidence to impeach the affidavits of such witnesses.

       {¶14} Under Crim.R. 33(B), however,
       [m]otions for a new trial based upon newly discovered evidence must be
       filed within one hundred twenty days after the verdict was rendered, unless
       it appears by clear and convincing proof that the movant was unavoidably
       prevented from discovering the new evidence[.]

A party is unavoidably prevented from filing a motion for a new trial if the party

establishes that he or she “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. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 16

(2d Dist.), citing State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th

Dist.1984).

       {¶15} A Crim.R. 33(A)(6) motion for new trial on the ground of newly discovered

evidence may be granted only if that 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 discovered before the trial, (4) is
       material to the issues, (5) is not merely cumulative to former evidence, and
       (6) does not merely impeach or contradict the former evidence.

State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.

       {¶16} By its terms, Crim.R. 33 does not require a hearing on a motion for a new

trial. Thus, the decision to conduct a hearing is one that is entrusted to the discretion of

the trial court.   State v. Smith, 30 Ohio App.3d 138, 139, 506 N.E.2d 1205 (9th

Dist.1986).   The decision whether to grant a motion for a new trial also lies within the

sound discretion of the trial court and will not be disturbed on appeal absent an abuse of

that discretion. State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990).
V. Analysis

       {¶17} Cannon did not timely file his motion for a new trial based upon newly

discovered evidence.     But we agree with him that he showed, by clear and convincing

evidence, that he was unable to timely discover this “new evidence” with due diligence.

       {¶18} Nonetheless, Cannon does not meet the first Petro criteria, which states that

a new trial may be granted only if the newly discovered evidence “discloses a strong

probability that it will change the result if a new trial is granted.” Id. at the syllabus.

First, there was another witness (Baker-Terrell) who testified at Cannon’s trial that she

saw Cannon shoot at the victim. Thus, it is unlikely that Parker’s affidavit amounts to a

“strong probability” that it would change the outcome of the trial if a new trial was

granted. But even more significantly, Cannon also testified at trial that he shot the

victim in self-defense.      Cannon’s testimony that he shot the victim negates any

possibility, let alone a “strong probability,” that this new evidence — a witness who now

says he did not see Cannon shoot the victim — would change the result if a new trial was

granted.   Cannon further argues that the trial court should have at least held a hearing on

his motion. The same judge who presided over Cannon’s trial — a bench trial — is the

same judge who denied his first petition for postconviction relief and his motion for a

new trial that is the subject of this appeal.   “‘[T]he acumen gained by the trial judge who

presided during the entire course of [the] proceedings makes [her] well qualified to rule

on the motion for a new trial on the basis of the affidavit[s] and makes a time consuming
hearing unnecessary.’” State v. Monk, 5th Dist. Knox No. 03CA12, 2003-Ohio-6799, ¶

20, quoting United States v. Curry, 497 F.2d 99, 101 (5th Cir.1974).

        “The trial judge is in a peculiarly advantageous position * * * to pass upon
        the showing made for a new trial. [The judge] has the benefit of observing
        the witnesses at the time of the trial, is able to appraise the variable weight
        to be given to their subsequent affidavits, and can often discern and assay
        the incidents, the influences, and the motives that prompted the recantation.
         [The judge] is, therefore, best qualified to determine what credence or
        consideration should be given to the retraction, and [the judge’s] opinion is
        accordingly entitled to great weight. If the rule were otherwise, the right
        of new trial would depend on the vagaries and vacillations of witnesses
        rather than upon a soundly exercised discretion of the trial court.”

Taylor v. Ross, 150 Ohio St. 448, 452, 83 N.E.2d 222 (1948), quoting State v. Wynn, 178

Wash. 287, 34 P.2d 900 (1934).

        {¶19} Here, the reasoning set forth in Monk, Curry, and Taylor is even more

applicable because in this case, the trial court was also the factfinder.     Thus, the trial

court in this case, who observed the witnesses testifying and subsequently found Cannon

guilty, was in the best position to decide if a hearing on Cannon’s motion was necessary.

        {¶20} Cannon points to State v. Covender, 9th Dist. Lorain No. 11CA010093,

2012-Ohio-6105, and State v. Carusone, 1st Dist. Hamilton No. C-130003,

2013-Ohio-5034, in support of his argument that the trial court erred in denying his

motion without an evidentiary hearing.           This court recently found these cases

distinguishable on their facts in a similar case and we likewise find them distinguishable

here.   See State v. Conner, 8th Dist. Cuyahoga No. 103092, 2016-Ohio-301 (for a

discussion on the facts of Covender and Carusone).
      {¶21} After thoroughly reviewing the record and applicable law, we hold that

Cannon’s “newly discovered evidence” does not meet the Petro criteria because it would

not change the outcome of the trial if a new trial was granted.      Accordingly, the trial

court did not abuse its discretion in denying Cannon’s motion without an evidentiary

hearing.

      {¶22} Cannon’s sole assignment of error is overruled.

      {¶23} Judgment affirmed.

      It is ordered that appellee recover from appellant the costs herein taxed.

      The court 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 judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.    Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

LARRY A. JONES, SR., A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
