[Cite as State v. West, 2017-Ohio-737.]



                            STATE OF OHIO, MAHONING COUNTY
                                   IN THE COURT OF APPEALS
                                          SEVENTH DISTRICT

STATE OF OHIO                                      )
                                                   )
        PLAINTIFF-APPELLEE                         )
                                                   )           CASE NO. 16 MA 0131
VS.                                                )
                                                   )                  OPINION
KEVIN WEST                                         )
                                                   )
        DEFENDANT-APPELLANT                        )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Mahoning County,
                                                   Ohio
                                                   Case No. 2008 CR 1007

JUDGMENT:                                          Affirmed.

APPEARANCES:
For Plaintiff-Appellee                             Attorney Paul Gains
                                                   Mahoning County Prosecutor
                                                   Attorney Ralph Rivera
                                                   Assistant Prosecutor
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503-1426

For Defendant-Appellant                            Attorney Paul Mancino, Jr.
                                                   75 Public Square, Suite 1016
                                                   Cleveland, Ohio 44113-2098

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb


                                                   Dated: February 28, 2017
[Cite as State v. West, 2017-Ohio-737.]
DeGENARO, J.

        {¶1}     Defendant-Appellant, Kevin West, appeals the trial court's judgment
denying his motion for leave to file a motion for new trial. As West's argument is
meritless the judgment of the trial court is affirmed.
        {¶2}     In 2011 West was convicted of aggravated murder, an attendant gun
specification and sentenced to 30 years to life. Three eye witnesses testified at trial
that they saw West shoot the victim. This Court affirmed West's conviction and the
main part of his sentence; it was modified to eliminate the trial court's reference to
'post-release control' as 'parole' was the appropriate terminology. State v. West, 7th
Dist. No. 11 MA 33, 2012-Ohio-2758, ¶ 50. The Ohio Supreme Court declined to
accept the appeal for review. State v. West, 133 Ohio St.3d 1414, 2012-Ohio-4650,
975 N.E.2d 1031.
        {¶3}     Almost four years later, West filed a motion for leave to file a delayed
motion for new trial pursuant to Crim.R. 33, supported by two affidavits. The first was
an affidavit from LaNiqua Wallace who stated that she was present the date of the
shooting, witnessed the shooting, and the shooter was not West. West stated in his
affidavit that "not all witnesses who witnessed the event testified." In the motion,
West argued that he could not discover this evidence because he was in jail and that
Wallace was not interviewed by law enforcement and was a minor. On July 28, 2016,
the trial court denied the motion.
        {¶4}     In his sole assignment of error, West asserts:

        DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE
        COURT OVERRULED HIS MOTION FOR A NEW TRIAL WHERE HE
        PRESENTED NEWLY DISCOVERED EVIDENCE ESTABLISHING
        ACTUAL INNOCENCE.

        {¶5}     To succeed on a new trial motion on the basis of newly discovered
evidence under Crim.R. 33(A)(6), the defendant must show that the new evidence:
"(1) raises a strong probability that the result of the case will change if a new trial is
granted, (2) has been discovered since the trial, (3) could not have been discovered
                                                                                  -2-


prior to trial through the exercise of due diligence, (4) is material to the issues, (5) is
not cumulative to other known evidence, and (6) does not merely impeach or
contradict the other known evidence." State v. Dew, 7th Dist. No. 13 MA 174, 2016–
Ohio–274, ¶ 9. However, the rule does not require a hearing to resolve the
motion. State v. Billman, 7th Dist. No. 12 MO 3, 12 MO 5, 2013–Ohio–5774, ¶ 43.
       {¶6}   The decision to grant or deny a new trial based upon "grounds of newly
discovered evidence falls within the sound discretion of the trial court." State v.
LaMar, 95 Ohio St.3d 181, 2002–Ohio–2128, 767 N.E.2d 166, ¶ 85, citing State v.
Hawkins, 66 Ohio St.3d 339, 350, 612 N.E.2d 1227 (1993). Similarly, whether a
hearing is warranted is within the trial court's discretion. State v. Mir, 7th Dist. No. 12
MA 210, 2013–Ohio–2880, ¶ 7. An abuse of discretion means the trial court's
decision is unreasonable based upon the record; that the appellate court may have
reached a different result is not enough to warrant reversal. State v. Dixon, 7th Dist.
No. 10 MA 185, 2013–Ohio–2951, ¶ 21.
       {¶7}   To be timely a motion for new trial based on newly discovered evidence
must be filed within 120 days after the verdict. Crim.R. 33(B). If the motion is filed
beyond that time frame, the defendant must demonstrate by " 'clear and convincing
proof that he has been unavoidably prevented from filing a motion in a timely
fashion.' " State v. Brown, 186 Ohio App.3d 309, 2010–Ohio–405, 927 N.E.2d 1133,
¶ 23 (7th Dist.) (internal citations omitted).
       {¶8}   '[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.' "
Id. at 57 (internal citations omitted). Many courts have additionally required that
motions for leave to file a delayed new trial motion must be made within a reasonable
time after discovering the evidence. Id. at ¶ 23.
       {¶9}   West claims that he is entitled to a new trial because of newly
discovered evidence as outlined in his affidavit and that of LaNiqua Wallace.
                                                                                  -3-


       {¶10} West's argument is meritless because he did not establish that he was
unavoidably prevented from filing his motion in a timely fashion. He should have been
able to discover the substance of Wallace's proffered testimony when he was initially
incarcerated. More problematic is that Wallace admits in her affidavit to being present
at the time of the shooting at the house of Samantha Miller, a witness who testified at
trial. West provides no explanation why Miller was not questioned about any other
witnesses present, nor provides an affidavit of his trial counsel as to his knowledge
regarding Wallace.
       {¶11} Even assuming arguendo that West provided a sufficient reason for the
delay, he fails to satisfy the other six criteria to be granted a new trial on the ground
of newly discovered evidence. See Dew, supra. Wallace's statement merely
contradicts the others that were given by witnesses in this case. The proffered newly
discovered evidence must not merely impeach or contradict the other known
testimony, which is exactly what the Wallace affidavit does. Accordingly, West's sole
assignment of error is meritless.
       {¶12} As West's motion for leave did not show by clear and convincing proof
that he had been unavoidably prevented from filing his motion for leave in a timely
fashion, his sole assignment of error is meritless and this matter is affirmed.

Donofrio, J., concurs.

Robb, P. J., concurs.
