 [Cite as State v. Risden, 2013-Ohio-1823.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 RICKEY L. RISDEN, II


         Defendant-Appellant

 Appellate Case No.       25234

 Trial Court Case No. 2007-CR-3231

 (Criminal Appeal from
 (Common Pleas Court)
                                              ...........

                                              OPINION

                                  Rendered on the 3rd day of May, 2013.

                                              ...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Assistant Prosecuting
Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

RICKEY L. RISDEN, II, Inmate No. 586-389, Lebanon Correctional Institution, P.O. Box 120,
Lebanon, OH 45036
      Defendant-Appellant-pro se

                                                    .............

WELBAUM, J.
                                                                                                                      2


                {¶ 1}         Defendant-Appellant, Rickey L. Risden, II, appeals the trial court’s decision

overruling his Motion for Leave to File a Delayed Motion for New Trial on Account of Newly

Discovered Evidence Which the Defendant was Unavoidably Prevented From Discovering. 1

Risden claims that the trial court erred and abused its discretion when it overruled the motion

without an evidentiary hearing. Risden also argues that the trial court failed to rule on the

Motion for Summary Judgment filed by the Appellee, the State of Ohio.

       {¶ 2}        We conclude that the trial court did not err when it overruled Risden’s Motion for

Leave to Move for New Trial without an evidentiary hearing. The alleged newly discovered

evidence is not credible, and Risden failed to clearly and convincingly prove that he was

unavoidably prevented from timely filing a motion for new trial. We further conclude that the

trial court did not fail to rule on the Appellee’s Motion for Summary Judgment. Accordingly,

the judgment of the trial court will be affirmed.



                                         I. Facts & Course of Proceedings

       {¶ 3}        On August 5, 2007, Rickey L. Risden, II, drove to Trotwood with his sister,

Amanda, to purchase heroin. After the heroin was purchased, Risden stopped at a gas station

and injected himself with the heroin. He then continued to drive home and struck a pedestrian.

Risden did not stop and help the pedestrian, but immediately left the scene. Two days later,

Risden confessed to a sheriff’s deputy that he had struck the pedestrian after taking heroin. The

pedestrian suffered severe injuries and died six weeks later.



         1
             For purposes of convenience, we will refer to this motion as a Motion for Leave to Move for New Trial.
                                                                                             3


       {¶ 4}    On July 28, 2008, Risden was convicted of one count of Tampering with

Evidence, one count of Failure to Stop After an Accident, and two counts each of Aggravated

Vehicular Assault and Aggravated Vehicular Homicide. His conviction was affirmed by this

district on March 12, 2010.         See State v. Risden, 2d Dist. Montgomery No. 22930,

2010-Ohio-991.

       {¶ 5}    On May 27, 2011, Risden filed a Motion for Leave to Move for New Trial on

grounds that he recently discovered new evidence, which he claimed entitled him to a new trial.

The “new evidence” was an anonymous letter allegedly sent to Risden in prison on March 15,

2011. The letter indicated that the writer used to work at the Montgomery County Sheriff’s

Office and that documents used in the investigation and prosecution of Risden’s case were

back-paged. The writer explained that back-paging occurs when a back jurat page is signed by a

notary public and     documents produced later in time are attached to it.         The writer only

generally referred to the alleged back-paged documents and none of the documents were attached

with the letter. Accompanying the letter was a standard, white envelope with a hand-written

address and return address.      The letter was addressed to Risden at the Warren County

Correctional Institution. The handwritten return address listed the address of the Montgomery

County Sheriff’s Office.

       {¶ 6}    After Risden allegedly received the letter, he claims that he reviewed all of the

documentation in his case file and surmised that the search warrants and autopsy reports were

back-paged. He based this assertion on varied font styles and signature dates. Risden claims that

he did not receive a fair trial as a result of the allegedly fraudulent, back-paged documentation.

       {¶ 7}    In his Motion for Leave to Move for New Trial, Risden argued that he was
                                                                                           4


unavoidably prevented from timely discovering the back-paging due to the arrival date of the

letter. He claimed that the letter qualified as newly discovered evidence that entitled him to a

new trial under Crim.R. 33. In support of his argument, he attached his own affidavit and 23

exhibits.      The exhibits included copies of: the allegedly back-paged documentation;

correspondence from the prosecutor’s office providing Risden with the names of former

Montgomery County Sheriff’s Office employees; and the anonymous letter of March 15, 2011.

         {¶ 8}    In response to Risden’s Motion for Leave to Move for New Trial,

Plaintiff-Appellee, the State of Ohio, filed a Motion for Summary Judgment under the

post-conviction relief statute, R.C. 2953.21. Risden then filed a Memorandum Contra Plaintiff’s

Motion for Summary Judgment. On May 7, 2012, the trial court overruled Risden’s Motion for

Leave to Move for New Trial on grounds that the alleged new evidence lacked the credibility

necessary to warrant an evidentiary hearing. Risden appealed the trial court’s decision.



   II.      Did the Trial Court Err in Overruling Appellant’s Motion for Leave to Move for

            New Trial Without an Evidentiary Hearing and Fail to Rule on Appellee’s

                                 Motion for Summary Judgment?

         {¶ 9}    Risden states the following as his sole Assignment of Error:

                 The Trial Court Erred and Abused its Discretion by Overruling/Denying

         Appellant’s Motion Without an Evidentiary Hearing, and Not Ruling on [sic]

         Summary Judgment Motion.

         {¶ 10} Under this assignment of error, Risden claims that the trial court abused its

discretion when it overruled his Motion for Leave to Move for New Trial without an evidentiary
                                                                                           5


hearing, because it failed to determine whether he was unavoidably prevented from discovering

the new evidence at issue. He also argues that the trial court failed to rule on Appellee’s Motion

for Summary Judgment. We will begin our analysis with the first part of Risden’s assignment of

error concerning the Motion for Leave to Move for New Trial.

        {¶ 11} “We review the trial court’s denial of leave to file a motion for a new trial for an

abuse of discretion. An abuse of discretion occurs when the decision of a court is unreasonable,

arbitrary or unconscionable.” (Citations omitted.) State v. Lanier, 2d Dist. Clark No. 2009 CA

84, 2010-Ohio-2921, ¶ 18.

        {¶ 12}   Crim.R. 33 sets forth the grounds for granting a new trial and the procedure a

defendant must use when filing a motion for new trial. The applicable ground in the case before

us is found in Crim.R. 33(A)(6), which “ ‘permits a convicted defendant to file a motion for new

trial upon grounds that new evidence material to the defense has been discovered that the

defendant could not with reasonable diligence have discovered and produced at trial.’ ” Lanier

at ¶ 14, quoting State v. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 15

(2d Dist.).

        {¶ 13}   Crim.R. 33(B) requires that a motion 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 * * *.” Crim.R. 33(B). “A defendant who seeks a new trial after the

120-day time period must first obtain leave from the trial court, demonstrating ‘by clear and

convincing evidence that he or she was unavoidably prevented from timely filing the motion for a

new trial or discovering the new evidence within the time period provided by Crim.R. 33(B).’ ”

Lanier at ¶ 15, quoting State v. Warwick, 2d. Dist Champaign No. 01CA33, 2002-Ohio-3649.
                                                                                            6


Accordingly, “[t]he procedure for handling a delayed motion for new trial on account of newly

discovered evidence is a two-step process.” (Citations omitted.) State v. York, 2d Dist. Greene

No. 2000 CA 70, 2001 WL 332019, *2 (April 6, 2001). A defendant “must first obtain leave

to file such motion. After he obtains leave, he has seven days to file his motion for a new trial.”

(Citation omitted.) Id.

       {¶ 14}     When a defendant attempts to offer new evidence after the 120-day time limit

has passed, the defendant must establish:        “(1) that it is new evidence; (2) that he was

unavoidably prevented from discovering within the time limit; (3) that it is based on fact; and (4)

that the evidence is being proffered in good faith.” State v. Beavers, 2d Dist. Montgomery No.

22588, 2009-Ohio-5604, ¶ 27, citing 2 Baldwin’s Ohio Practice, Section 79:9.          Accordingly,

the credibility of the new evidence must be assessed. Id. at ¶ 27, citing State v. Martin, 2d Dist.

Montgomery No. 20383, 2005-Ohio-209, ¶ 16.

       {¶ 15}     In this case, Risden did not meet the 120-day filing deadline set forth in Crim.R.

33(B) because he allegedly received the “new evidence,” i.e. the anonymous letter, three years

after his conviction.     As a result, he complied with the initial procedural requirements of

Crim.R.33(B) and filed a Motion for Leave to Move for New Trial on grounds that new evidence

was discovered.     Because the procedural requirements are satisfied, we will next consider

whether the evidence is credible.

                          A. The Alleged New Evidence Lacks Credibility

       {¶ 16}      As was noted, Risden has the burden to show that the alleged new evidence is

based in fact and proffered in good faith.         Beavers at ¶ 27.     These “considerations do

contemplate some assessment of the credibility of any newly discovered testimony being
                                                                                             7


offered.” Id. at ¶ 27, citing Martin at ¶ 16.    “Questions of credibility are primarily for the trial

court to determine.” Martin at ¶ 17, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967).

          In this case, the trial court found that the anonymous letter lacked credibility and was

insufficient to warrant a hearing on the Motion for Leave to Move for New Trial. The court

found that the letter was not credible because the letter: (1) was not signed; (2) did not state what

position the writer held at the Montgomery County Sheriff’s Office; (3) only generally refers to

the allegedly back-paged documentation; and (4) had none of the back-paged documentation

attached. Additionally, the return address on the envelope was from the Montgomery County

Sheriff’s Office, which the trial court found to be odd considering that the anonymous writer

identified himself/herself as a former employee of the sheriff’s office.

          {¶ 17}   The trial court’s credibility determination is based on sound reasoning, and it is

not unreasonable, arbitrary or unconscionable. Accordingly, the trial court did not abuse its

discretion when it determined that the anonymous letter lacked credibility. Because the alleged

new evidence in this case lacks credibility, Risden failed to meet his burden of showing that it

was based in fact and submitted in good faith.



              B. Risden Cannot Clearly and Convincingly Prove He Was Unavoidably

                    Prevented From Discovering the “New Evidence” Within the

                               Time Limit Set Forth in Crim.R.33(B)

          {¶ 18}   Risden is required to show “ ‘by clear and convincing evidence that he * * *

was unavoidably prevented from timely filing the motion for new trial or discovering the new
                                                                                            8


evidence within the time period provided by Crim.R.33(B).’ ” Lanier, 2d Dist. Clark No. 2009

CA 84, 2010-Ohio-2921, at ¶ 15, quoting Warwick, 2d Dist. Champaign No. 01CA33,

2002-Ohio-3649.

       {¶ 19} “ ‘[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 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.’ ” Id., quoting State v. Walden,19

Ohio App.3d 141, 146, 483 N.E.2d 859 (10th Dist. 1984); State v. Wilson, 2d Dist. Montgomery

No. 23247, 2009-Ohio-7035, ¶ 8.

       {¶ 20}    In this case, Risden argues that he was unavoidably prevented from timely filing

a motion for new trial because he did not learn of the back-paging until he allegedly received the

anonymous letter of March 15, 2011, which was three years after his conviction. The only

evidence offered in support of this argument is the anonymous letter itself and Risden’s

self-serving affidavit. Risden also argues that the trial court failed to analyze whether he was

unavoidably delayed from filing a motion for new trial.

       {¶ 21}    We agree that the trial court did not analyze unavoidable delay in its decision

overruling the Motion for Leave to Move for New Trial; however, we do not find that this

amounts to reversible error. Since the trial court found that the letter lacked credibility, there

was no reason to take the next step of determining whether the timing of the letter amounts to

clear and convincing proof of unavoidable delay.          Accordingly, the trial court’s credibility

determination obviated the need for an unavoidable delay analysis.

       {¶ 22}    Even if the trial court had proceeded with the unavoidable delay analysis, the
                                                                                           9


timing of the letter would not have qualified as clear and convincing proof of unavoidable delay.

“ ‘Clear and convincing proof’ is that ‘which will produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.’ ” State v. McConnell, 2d Dist.

Montgomery No. 24315, 2011-Ohio-5555, ¶ 14, quoting State v. Schiebel, 55 Ohio St.3d 71, 74,

564 N.E.2d 54 (1990).

        {¶ 23} Here, Risden seeks to establish that the date he received the letter, (March 15,

2011), unavoidably prevented him from timely filing a motion for new trial. However, because

the letter lacks credibility, there is no firm belief or conviction that a former sheriff’s office

employee actually wrote a letter to Risden.   Accordingly, the alleged timing of the letter cannot

serve as clear and convincing proof that Risden was unavoidably delayed from filing a motion for

new trial within the 120-day time limit, as the letter could have been fabricated at any point in

time.

        {¶ 24}      Because the evidence offered in support of finding unavoidable delay lacks

credibility, and because Risden cannot clearly and convincingly prove that he was unavoidably

prevented from timely filing a motion for new trial, the trial court did not err when it overruled

Risden’s Motion for Leave to Move for New Trial.



                 C. The Trial Court Ruled on Appellee’s Summary Judgment Motion

        {¶ 25} The second part of Risden’s assignment of error states that the trial court erred by

“not ruling on [sic] summary judgment motion.” It appears from the record that Risden is

referring to the Appellee’s Motion for Summary Judgment that was filed in response to Risden’s

Motion for Leave to Move for New Trial, which is, in essence, a memorandum opposing
                                                                                                                               10


Risden’s motion. The Appellee filed a motion for summary judgment because it incorrectly

framed its pleading under the post-conviction relief statute, R.C. 2953.21, as opposed to Crim.R.

33.2

         {¶ 26}        Regardless of the Appellee’s mistake, the trial court ruled on all the pleadings

related to Risden’s Motion for Leave to Move for New Trial, including the Appellee’s Motion for

Summary Judgment. The trial court’s decision of May 7, 2012 states:

                    This matter is before the Court on the Motion for Leave to File a Delayed

         Motion for New Trial on Account of Newly Discovered Evidence Which

         Defendant was Unavoidably Prevented from Discovering filed by Defendant

         Rickey L. Risden, II. The Motion for Summary Judgment and Dismissal was

         filed on June 20, 2011. Defendant’s Memorandum Contra Plaintiff’s Motion for

         Summary Judgment and Dismissal Instanter was filed on July 15, 2011. This

         matter is properly before the court.                     Decision, Order and Entry (May 7, 2012),

         Case No.2007-CR-03231, p. 1.

         {¶ 27} Accordingly, we find that the trial court ruled on Appellee’s Motion for

Summary Judgment, and Risden’s argument has no merit.

         {¶ 28}        For the foregoing reasons, we find that the trial court did not err by overruling

Risden’s Motion for Leave to Move for New Trial without an evidentiary hearing and did not fail


           2
                 Pursuant to R.C. 2953.21(D), in post-conviction relief cases either party may file for summary judgment. However, “the
 Crim.R. 33(B) procedure for new trial motions exists independently from the R.C. 2953.21 procedure for post-conviction petitions.”
 (Citation omitted.) State v. Berry, 10th Dist. Franklin No. 06AP-803, 2007-Ohio-2244, ¶ 5, n.1. When an appellant “couche[s] all of
 his arguments in the trial court and in [the appellate court] in terms of a Crim.R. 33(B) motion and has addressed only the requirements of
 that rule, [the appellate court] will treat his motion as a motion for new trial and not as a petition for post-conviction relief.” Id.
                                                                                 11


to rule on Appellee’s Motion for Summary Judgment. Risden’s sole assignment of error is

overruled.

                                          III. Conclusion

       {¶ 29} Having overruled Rickey L. Risden, II’s sole assignment of error, we hereby

affirm the judgment of the trial court.

                                                  .............



FROELICH and HALL, JJ., concur.




Copies mailed to:

Mathias H. Heck
Carley J. Ingram
Rickey L. Risden, II
Hon. Barbara P. Gorman
