[Cite as State v. Sutton, 2016-Ohio-7612.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103931




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    MICHAEL SUTTON
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-06-481840-D

        BEFORE: Celebrezze, J., McCormack, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: November 3, 2016
ATTORNEY FOR APPELLANT

Gregory Scott Robey
Robey & Robey
14402 Granger Road
Cleveland, Ohio 44137


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Gregory J. Ochocki
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Appellant, Michael Sutton, appeals from the denial of his motion for leave

to file a motion for new trial filed eight years after he was convicted of attempted murder,

felonious assault, inducing panic, failure to comply, and resisting arrest.      Appellant

claims the trial court abused its discretion in summarily denying the motion without a

hearing. After a thorough review of the record and law, this court affirms.

                           I. Factual and Procedural History

       {¶2} Appellant was convicted of multiple offenses related to a drive-by shooting

that occurred in the early morning hours of May 29, 2006.            Appellant received a

46½-year sentence. In 2008, this court affirmed the jury’s verdicts, but remanded for

resentencing based on allied offenses. State v. Sutton, 8th Dist. Cuyahoga No. 90172,

2008-Ohio-3677.1 After further proceedings in the Ohio Supreme Court and this court,

appellant was resentenced. He was sentenced to 41½ years in prison and appealed to this

court, where his sentence was affirmed. State v. Sutton, 8th Dist. Cuyahoga No. 97132,

2012-Ohio-1054.

       {¶3} On August 21, 2015, appellant filed an inartfully titled motion for leave to

file a motion for new trial.      In all, he submitted transcripts of interviews of four

purported witnesses, Maelynn Colvin, Vanetta Redding, Dovonna Corothers, and Greg


       1   A more detailed recitation of the facts can be found in this case at ¶ 2-6.
Jones; along with a written statement from Tyrell Bonner.

       {¶4} Colvin said she met up with a group of friends at a Cleveland nightclub on

May 28, 2006. She arrived late and did not actually go into the club, but she gave her

two friends, Redding and Corothers, a ride home. She left the nightclub in a convoy of

cars all traveling back to the same neighborhood. The convoy was driving home when a

police car pulled out of a gas station on East 55th Street and Woodland Avenue, and

attempted to stop the car in front of Colvin’s. That car was occupied by appellant and

three other people. She said a gold vehicle that was leading their convoy was the one

whose occupants were responsible for any gunshots. She identified Willie Wayne Moore

as the individual in that gold vehicle. She also stated she did not see any Lincoln Mark

VIII that night, the make and model of the car at which bullets were fired. When asked

if she was ever interviewed by a representative of appellant’s, like an attorney, she said

yes:

       INVESTIGATOR: Well, do you recall if, let me ask you this, do you recall
       having been contacted by a representative from [appellant’s] attorney’s
       office before his trial?

       COLVIN: No. I believe that I started really hearing from people after that
       trial.

       INVESTIGATOR: Okay. Previously, you indicated you were contacted by
       [the attorney assigned to represent appellant during his direct appeal and
       postconviction proceedings].

       COLVIN: Yes.

       {¶5} Redding was also interviewed by an investigator. She stated she was in

Colvin’s car in the front passenger seat. Four cars had left the club together to travel
back to their neighborhood. Colvin’s car was the third in the convoy, directly behind

appellant’s car. The three trailing cars stopped at a gas station to get some snacks near

East 55th and Woodland, while the lead car continued on.            According to Redding,

appellant purchased food for everyone. The three cars left the parking lot after getting

food, and the gold car rejoined the convoy in the lead again. About five minutes after

getting back on the road, a police cruiser came up from behind and pulled appellant’s

vehicle over. Redding did not witness any gunfire coming from appellant’s vehicle and

stated that she heard a few gunshots while the group was stopped at the gas station.

       {¶6} Corothers’s statement indicates she was seated in a rear passenger seat of

Colvin’s car as the group drove back home from the club. She stated that as the convoy

of cars headed home, the lead car, a gold car, separated from the group at the intersection

of East 55th, Woodland, and Kinsman. She lost sight of the vehicle, and it later rejoined

the group. She did not remember stopping at a store or gas station on the way home. As

the group was driving home, a police cruiser came from behind them and pulled

appellant’s car over.

       {¶7} Former Cleveland Police Officer Greg Jones provided a statement to an

investigator in 2015. There, he took issue with the version of events set forth in the

police report drafted by Cleveland Police Officer Daniel Lentz and Lentz’s testimony

during appellant’s trial. Jones stated that he and his partner were in their police cruiser at

the Marathon gas station at the corner of East 55th and Woodland. Officers Lentz and

Michael Keane were also parked nearby in their own cruiser. While there, the officers
heard gunshots, looked down the street, and saw two cars driving at high rates of speed.

The two police cruisers pulled out of the gas station and pursued the two vehicles.

Officer Lentz was able to catch up to one vehicle. Once this vehicle stopped, people

jumped out and ran. The driver, later determined to be appellant, stayed near the vehicle

and was arrested. The other vehicle got away. Jones indicated that Officer Lentz could

not have been truthful in his testimony at trial.

       {¶8} Jones’s statement also indicates he was contacted in 2013 and asked to

provide a statement after being shown the police reports. He agreed, but no statement

was taken at that time. He did not know why. Appellant did not offer the trial court any

explanation for the roughly two-year delay between the 2013 visit Jones received from an

investigator and the 2015 statement.

       {¶9} Finally, appellant attached a written statement from Tyrell Bonner. He was

at the same club as appellant and his friends on May 28, 2006. He stated that “Willie

Wayne” and some other people got into a fight at the club that night and security kicked

them out.       The fight continued in the parking lot.   He stated that “Willie Wayne”

threatened those he was fighting with. He further offered that appellant was not involved

in the fight.

       {¶10} The trial court denied the motion without hearing, and appellant filed the

instant appeal assigning two errors for review:

       I. The trial court erred and abused its discretion in summarily denying the
       appellant’s motion for leave to file a new trial based upon newly discovered
       evidence.
      II. The trial court erred in summarily denying appellant’s motion without
      making any factual findings or conclusions of law, or holding a hearing,
      thereby creating an abuse of discretion in denying appellant’s motion for
      leave to file a motion for a new trial.

                                II. Law and Analysis

                A. Motion for Leave to File a Motion for New Trial

      {¶11} Crim.R. 33 provides an avenue for a post-judgment attack on a valid

criminal conviction. The rule provides for a number of situations where a criminal

defendant may seek a new trial. The relevant provision here is for newly discovered

evidence:

      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.

Crim.R. 33(A)(6). However, the rule has strict timing requirements:

      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.

Crim.R. 33(B).

       {¶12} According to the rule, one seeking a new trial based on newly discovered

evidence after the period specified in the rule has expired, must first file a motion for

leave to file a motion for new trial. The motion for leave must demonstrate that the

movant was unavoidably prevented from discovering the new evidence that underpins a

future motion for new trial.

       [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 [with reasonable diligence,] could not have learned
       of the existence of that ground within the time prescribed for filing the
       motion for new trial * * * .

State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984).

       {¶13} This court reviews the denial of leave to file a delayed motion for a new trial

for an abuse of discretion.         State v. Gray, 8th Dist. Cuyahoga No. 94282,

2010-Ohio-5842, ¶ 17. An abuse of discretion connotes that the trial court’s attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).
       {¶14} Here, clear and convincing evidence does not exist to establish that

appellant was unavoidably prevented from discovering the purported testimony of Colvin,

Redding, and Corothers. These witnesses were friends or relatives of appellant and his

codefendants, were with appellant and a large group of friends at the nightclub, and were

in a convoy of cars that drove from the nightclub in Cleveland to their shared

neighborhood. In fact, each of them were in the car directly behind the car appellant was

driving. Appellant does not provide any indication why he was unavoidably prevented

from learning of the existence of these potential witnesses prior to trial or within the

120-day period set forth in the rule.      In fact, Colvin’s statement to an investigator

attached to appellant’s motion indicates that she was previously contacted by an attorney

representing appellant after his criminal trial ended.

       {¶15} Appellant asserts on appeal that he did not know who was following him,

and at oral argument, he asserted that the three females in the car behind his did not meet

up with him at the club. However, Redding’s statement indicates that appellant bought

the three women food on the way home shortly before being pulled over. Colvin’s

statement further indicates that she did not arrive to the club in time to go inside, but the

other two women were already there.

       {¶16} It is apparent from the statements that appellant was not unavoidably

prevented from discovering the existence of these three women as potential witnesses

prior to the expiration of the 120-day period specified in Crim.R. 33.

       {¶17} The statement from purported witness, Jones, indicated that the police report
and testimony of Officer Lentz at trial was different from his recollection of events.

However, Jones testified at trial. There is no argument here that his testimony has

changed.     Further, appellant failed to provide this court with a transcript to review

whether the substance of Jones’s statements to investigators in 2015 were similar to his

trial testimony, and whether Jones was asked questions similar to those asked by the

investigator. This court is without the necessary materials to fully evaluate the claims

made here.

       {¶18} Further, the transcript of the interview with an investigator attached to

appellant’s motion for leave includes Jones stating he was contacted in 2013 and spoke to

an investigator. The investigator showed Jones the police reports for the first time.

Jones talked about providing a statement and agreed to do so. However, no statement

appears to have been taken at that time. There is no indication in appellant’s motion as

to why there was approximately a two-year gap in the discovery of this witness and the

filing of his motion for leave.

       {¶19} This court recently addressed a motion similar in form to the one presented

here. State v. Washington, 8th Dist. Cuyahoga No. 103875, 2016-Ohio-5329. There,

this court faced a motion for leave to file a motion for new trial that was supported by the

statement of a codefendant recanting his testimony. Id. at ¶ 7. The motion for leave

was filed soon after Washington received a formal statement recanting trial testimony

from a codefendant who testified against Washington, but three years after Washington

had received a letter from this recanting witness indicating the witness lied during trial.
This court reiterated,

       even if a defendant has established that he was unavoidably prevented from

       filing his motion for a new trial within the time limits, if there was 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.”

Id. at ¶ 16, quoting State v. Stansberry, 8th Dist. Cuyahoga No. 71004, 1997 Ohio App.

LEXIS 4561 (Oct. 9, 1997). This court determined the trial court did not abuse its

discretion in denying Washington’s motion, at least in part, because Washington did not

explain the three-year gap. Id. at ¶ 17.

       {¶20} Appellant attached his own affidavit to a supplemental filing. There, he

stated he did not know about any of these purported witnesses and could not discover

them because he was in prison. Appellant does not advance any reason for the delay in

bringing these statements before the court. Appellant does not explain why he was not

aware of his friends in the car behind him. Similarly, appellant does not explain why a

statement from Jones was not obtained until two years after Jones agreed to give a

statement when investigators showed Jones police reports that contradicted his

recollections of the events leading up to appellant’s arrest.

       {¶21} Finally, Bonner’s statement does not deal with whether appellant was

involved in the drive-by shooting that resulted in his convictions. It does not have any
likelihood of changing the outcome of trial if it had been presented to the jury. Bonner

offers that another individual may have had a reason to commit the crimes of which

appellant was convicted. However, Bonner did not witness the shooting, and has no

knowledge of the individuals involved.

          {¶22} This court cannot say that the trial court abused its discretion in denying the

motion for leave when the supporting evidence, on its face, demonstrates that it was not

newly discovered, appellant was not unavoidably prevented from discovering the

evidence, or the evidence appellant relies on was not timely brought to the court’s

attention. Therefore, appellant’s first assignment of error is overruled.

                                 B. Failure to Hold a Hearing

          {¶23} Appellant argues that the trial court must issue findings of fact and

conclusion of law to indicate why it denied the motion when it does not hold a hearing.

Appellant also argues the court should have held a hearing on the motion for leave.

          {¶24} “The decision whether to grant or hold an evidentiary hearing on a

defendant’s request for leave to file a delayed motion for new trial falls within the sound

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

discretion.” State v. Hill, 8th Dist. Cuyahoga No. 102083, 2015-Ohio-1652, ¶ 16, citing

State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, 869 N.E.2d 77, ¶ 19 (2d

Dist.).

          {¶25} Appellant argues that defendants are entitled to a hearing on their motion for

leave when they “submit documents that on their face support [their] claim that [they
were] unavoidably prevented from timely discovering the evidence at issue.” State v.

Mango, 8th Dist. Cuyahoga No. 100490, 2014-Ohio-2768, ¶ 18, citing McConnell at ¶ 19.

 While Mango does not deal with a motion for leave to file a motion for new trial, it does

represent that where defendants have demonstrated by clear and convincing evidence that

they were unavoidably prevented from the discovery of new evidence that would change

the outcome of trial, the trial court should hold a hearing. However, as set forth above,

appellant has not shown that he was unavoidably prevented from discovering the

witnesses he relied on in his motion for leave or that his motion for leave was timely.

Therefore, the trial court was not required to hold a hearing.

       {¶26} Further, “[t]his court has already held * * * that trial courts have no duty to

issue findings of fact and conclusions of law when denying motions for new trial in

criminal cases.” State v. Brooks, 8th Dist. Cuyahoga No. 75522, 1999 Ohio App. LEXIS

3596, 5-6 (Aug. 5, 1999), citing State v. Girts, 121 Ohio App.3d 539, 565, 700 N.E.2d

395 (8th Dist.1997). Appellant argues the trial court should have done so in this case

when it denied the motion for leave without a hearing. Appellant does not point to any

case law or statute requiring that a trial court issue findings of fact and conclusion of law

when denying a motion for leave to file a motion for new trial. There is no justification

offered for this court to depart from its prior case law dealing with the denial of a motion

for new trial without a hearing. Therefore, we will not.

       {¶27} Appellant’s second assignment of error is overruled.

                                     III. Conclusion
       {¶28} The statements on which appellant relies in his motion for leave to file a

motion for new trial, on their face, demonstrate that appellant was not unavoidably

prevented from the discovery of these witnesses or that the motion was timely. The

statements from the three female witnesses establish that these three were known to

appellant on the night of his arrest. While their statements were newly offered, the three

women were not newly discovered as witnesses. The statement provided by Jones was

substantially known to investigators in 2013, and appellant does not explain why a formal

statement was not taken from Jones until 2015.           Finally, the statement of Bonner

demonstrates that he has no knowledge of the shootings of which appellant was

convicted. The trial court did not abuse its discretion when it denied appellant’s motion.

 For these same reasons, the court did not abuse its discretion when it denied the motion

without holding a hearing.

       {¶29} Judgment affirmed.

       It is ordered that appellee recover of appellant 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.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

TIM McCORMACK, P.J., CONCURS;
PATRICIA ANN BLACKMON, J., DISSENTS (WITH SEPARATE OPINION)

PATRICIA ANN BLACKMON, J., DISSENTING:

       {¶30} I respectfully dissent from the majority’s opinion. I would conclude that the

court abused its discretion when it failed to hold a hearing on Sutton’s motion for leave to

file a motion for a new trial.    Sutton’s support for a new trial was his allegation of a

newly discovered Brady violation by the police. In Brady v. Maryland, 373 U.S. 83, 87,

83 S.Ct. 1994, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that “the

suppression by the prosecution of evidence favorable to an accused upon request violates

due process where the evidence is material either to guilt or punishment, irrespective of

the good faith or bad faith of the prosecution.”

       {¶31} The standard that a court applies to a newly discovered evidence claim is

different than the standard for a Brady violation.

       [I]n determining whether the prosecution improperly suppressed evidence
       favorable to an accused, such evidence shall be deemed material “only if
       there is a reasonable probability that, had the evidence been disclosed to the
       defense, the result of the proceeding would have been different. “A
       ‘reasonable probability’ is a probability sufficient to undermine confidence
       in the outcome.”

State v. Johnston, 39 Ohio St.3d 48, 61, 529 N.E.2d 898 (1988), quoting United States v.
Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1984).

       {¶32} Colvin and Redding claim that they gave statements to the police after the

incident that no shots were fired from Sutton’s vehicle. These statements were not given

to Sutton or his counsel, and are not part of the record. Additionally, Jones claims that

he never saw the police report filed by Officers Keane and Lentz until the private

investigator interviewed him in 2013.       According to Jones, the police report is an

inaccurate representation of the events in multiple areas.   For example, Jones alleges that

none of the officers saw where the shots were fired from; rather, they were all in a

position to only hear the gunshots. According to Jones, the police were aware of these

discrepancies prior to trial.   Another example follows:

       Yes, we spoke with the detective. He was going over the report, which I
       had never read. And the detective mentioned, he said, yeah, it says here
       that * * * these guys were shooting at you, at you guys, meaning us officers.
        We were surprised, Lundy and myself * * * because we knew that night
       that nobody shot at us. So, we looked at the detective and told him, we
       told him that nobody shot at us that night. * * * I don’t know where that’s
       coming from, but nobody shot us, shot at us that night. So, the detective
       left to go talk to the prosecutor. That’s what he said he was going to do.
       He came back a short time later and said that the prosecutor said that we
       could leave. And that was the last time that I had any dealings with the
       case.

       {¶33} In conclusion, I would find that, had this evidence been known to the

defense, there is a reasonable probability that the outcome of Sutton’s trial would have

been different.
