[Cite as State v. Perkins, 2020-Ohio-2888.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 13-19-46

        v.

WILLIAM H. PERKINS, JR.,                                   OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 13-19-47

        v.

WILLIAM H. PERKINS, JR.,                                   OPINION

        DEFENDANT-APPELLANT.


                 Appeals from Seneca County Common Pleas Court
                   Trial Court Nos. 08 CR 0158 and 08 CR 0208

                                      Judgments Affirmed

                              Date of Decision: May 11, 2020



APPEARANCES:

        William H. Perkins, Jr., Appellant
Case No. 13-19-46, 13-19-47


SHAW, P.J.

       {¶1} Defendant-appellant, William H. Perkins, Jr. (“Perkins”), appeals the

November 5, 2019 judgment entries issued by the Seneca County Court of Common

Pleas denying his motion for leave to file a motion for a new trial.

       {¶2} In December 2008 and February 2009, Perkins was convicted of six

felonies stemming from an armed robbery of The Medicine Shoppe Pharmacy in

Tiffin, Ohio. State v. Perkins, 3d Dist. Seneca Nos. 13-10-50, 13-10-51, 2011-Ohio-

3129, ¶ 2-3.

       {¶3} Perkins filed numerous appeals of his conviction and sentence. See,

e.g., State v. Perkins, 3d Dist. Seneca Nos. 13-09-14, 13-09-15, 2009-Ohio-6722;

State v. Perkins, 190 Ohio App.3d 328, 2010-Ohio-5058 (3d Dist.); State v. Perkins,

3d Dist. Seneca Nos. 13-10-50, 13-10-51, 2011-Ohio-3129; State v. Perkins, 3d

Dist. Seneca Nos. 13-15-20, 13-15-21.

       {¶4} On August 5, 2019, Perkins filed a “Motion for Leave to File a New

Trial Motion Pursuant to Crim.R. 33(A)(2)” and a “Request for a Stay on the Ruling

for Both Leave to File a New Trial Motion and the Actual Motion for a New Trial”

in both trial court cases numbers 08 CR 0158 and 08 CR 0208. The motions were

filed simultaneous to Perkins’ Affidavit of Disqualification, seeking the Supreme

Court of Ohio to disqualify the sitting trial judge from Perkins’ cases.




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       {¶5} On September 23, 2019, the Supreme Court of Ohio denied Perkins’

Affidavit of Disqualification.

       {¶6} On November 5, 2019, the trial court issued judgment entries overruling

Perkins’ motions.

       {¶7} Perkins filed this appeal, asserting the following assignments of error.

                       ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED IN DENYING THIS
       APPELLANT’S MOTION FOR LEAVE TO FILE A NEW
       TRIAL MOTION AND THE MOTION FOR A NEW TRIAL
       WITHOUT FINDINGS OF FACT AND CONCLUSIONS OF
       LAW VIOLATING THIS APPELLANT’S CONSTITUTIONAL
       RIGHTS TO A FAIR TRIAL AND THE DUE PROCESS OF
       LAW UNDER THE 5TH AND 14TH AMENDMENTS OF THE
       US CONSTITUTON [SIC] AND THE EQUIVALENT
       ARTICLES   AND    SECTIONS   OF:   THE   OHIO
       CONSTITUTION.

                          ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED IN DENYING THE NEW TRIAL
       MOTION WHEN OTHER DEFENDANTS SIMILARLY
       SITUATED RECEIVED RELIEF BASED ON THE EXACT
       SAME CONVICTIONS FOR TAMPERING WITH EVIDENCE
       OF FORMER DETECTIVE SEAN O’CONNELL IN THE
       CASES HE INVESTIGATED LIKE THIS APPELLNTS [SIC].
       THIS IMPROPER DENIAL WITHOUT A HEARING OR
       REASONING     VIOLATED     THIS    APPELLANT’S
       CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW
       AND A FAIR TRIAL    UNDER THE 5TH AND 14TH
       AMENDMENTS OF THE US CONSTITUTION AND THE
       EQUIVALENT ARTICLES AND SECTIONS OF THE OHIO
       CONSTITUTION AS MERIT WAS SHOWN.



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Case No. 13-19-46, 13-19-47


                                 First and Second Assignments of Error

            {¶8} In these assignments of error, Perkins argues that the trial court erred in

denying his motion for leave to file a motion for a new trial under Crim.R. 33.

Specifically, Perkins claims that the trial court abused its discretion in denying his

motion because the trial court failed to issue findings of fact and conclusions of law

and failed to conduct a hearing on the motion.1

                                                   Relevant Law

            {¶9} Motions for a new trial are governed by Crim.R. 33(A), which provides,

in relevant part, that a trial court may grant a new trial “[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.” Crim.R. 33(A)(6). Crim.R.

33(B) sets forth the timing requirements for new-trial motions and provides, in

relevant part:

            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 by clear and
            convincing proof that the defendant was unavoidably prevented
            from the discovery of the evidence upon which he must rely, such
            motion shall be filed within seven days from an order of the court
            finding that he was unavoidably prevented from discovering the
            evidence within the one hundred twenty day period.




1
    We note that the State failed to file a brief in this matter.

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Case No. 13-19-46, 13-19-47


       {¶10} “Accordingly, a party may not seek a new trial on the basis of newly

discovered evidence after the 120-day time limit unless he can demonstrate that he

was unavoidably prevented from discovering the new evidence within the time

limit.” State v. Keith, 192 Ohio App.3d 231, 2011-Ohio-407, ¶ 39 (3d Dist.), citing

Crim.R. 33(B). “ ‘A party is ‘unavoidably prevented’ from filing a motion for a

new trial if the party had no knowledge of the existence of the ground supporting

the motion and could not have learned of that existence within the time prescribed

for filing the motion in the exercise of reasonable diligence.’ ” Id., quoting State v.

Lee, 10th Dist. Franklin No. 05AP-229, 2005-Ohio-6374, ¶ 8. “In order to be able

to file a motion for a new trial based on newly discovered evidence beyond the 120

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.’” Id. at ¶ 40, quoting State v. Graham, 3d

Dist. Hancock No. 5-05-13, 2006-Ohio-352, ¶ 10.

       {¶11} A motion for new trial under Crim.R. 33(B) is addressed to the sound

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

discretion. State v. Ray, 3d Dist. Union No. 14-05-39, 2006-Ohio-5640, ¶ 53, citing

State v. Farley, 10th Dist. Franklin No. 03AP-555, 2004-Ohio-1781, ¶ 6-7. An

abuse of discretion suggests that a decision is unreasonable, arbitrary, or

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).


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Case No. 13-19-46, 13-19-47


       {¶12} In his motion for leave to file a motion for a new trial, Perkins argues

that his motion for leave should be granted because of newly discovered evidence

of witness misconduct. In particular, Perkins claims that one of the law enforcement

officers, Sean O’Connell (“O’Connell”), a former detective with the Fremont Police

Department, who testified for the prosecution at Perkins’ jury trials in 2008 and

2009, had recently been convicted of tampering with evidence in an unrelated case.

Therefore, Perkins presumes, without any evidentiary support, that O’Connell

provided “false testimony” during his jury trials. Notably, a review of the jury trial

transcripts included with the record on appeal, which are voluminous in nature and

contain testimony from numerous witnesses, indicate that O’Connell provided brief,

testimony of his nominal involvement in the execution of a search warrant led by

Seneca County and City of Tiffin law enforcement.

       {¶13} On appeal, Perkins argues that the trial court erred in failing to hold a

hearing on his motion or to issue findings of fact and conclusions of law. Perkins

does not cite to any legal authority to support his arguments To the contrary,

Crim.R. 33 does not explicitly require a hearing on a motion for a new trial nor does

Crim.R. 33 require a trial court to issue findings of fact and conclusions of law. See

Crim.R. 33; see also State ex rel. Collins v. Pokorny, 86 Ohio St.3d 70 (1999)(A

trial court has no duty to issue findings of fact or conclusions of law when it denies

a Crim.R. 33 motion for a new trial.). Rather, courts have consistently held that the


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decision to conduct a hearing is entrusted to the discretion of the trial court. See

State v. Jalowiec, 9th Dist. Lorain No. 14CA010548, 2015-Ohio-5042, ¶ 20; State

v. Carusone, 1st Dist. Hamilton No. C–130003, 2013-Ohio-5034, ¶ 33 (The nature

of that hearing is discretionary with the court and depends on the circumstances.).

Moreover, to warrant the granting of a new trial based on newly discovered

evidence, the new evidence must disclose a “strong probability” that it will change

the result if a new trial is granted. State v. Barton, 12th Dist. Warren No. CA2005-

03-036, 2007-Ohio-1099, ¶ 31.

       {¶14} In the instant case, we find the record supports the trial court’s

determination that Perkins has failed to establish he is entitled to leave to file a

motion for a new trial. Accordingly, we conclude that the trial court did not abuse

its discretion in denying Perkins’ “Motion for Leave to File a New Trial Motion

Pursuant to Crim.R. 33(A)(2)” and his “Request for a Stay on the Ruling for Both

Leave to File a New Trial Motion and the Actual Motion for a New Trial.”

       {¶15} For all these reasons, the assignments of error are overruled and the

judgments of the trial court are affirmed.

                                                              Judgments Affirmed

PRESTON and ZIMMERMAN, J.J., concur.

/jlr




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