[Cite as State v. Sailor, 2014-Ohio-1062.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100009




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                         RU-EL SAILOR
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-03-435700-B

        BEFORE: E.T. Gallagher, J., Boyle, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: March 20, 2014
ATTORNEY FOR APPELLANT

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


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant, Ru-el Sailor (“Sailor”), appeals the denial of his motion

for leave to file a motion for a new trial, or in the alternative, petition for postconviction

relief. We find no merit to the appeal and affirm.

       {¶2} In July 2003, Sailor was charged, along with codefendants Cordell Hubbard

(“Cordell”) and Nichole Hubbard (“Nichole”), with aggravated murder, murder, firearm

specifications, kidnapping, felonious assault, and other related charges. According to the

evidence adduced at trial, Sailor shot the victim, Omar Clark (“Clark”), and his

companion, Clark Lamar (“Lamar”), during an argument in the early morning hours of

November 17, 2002.

       {¶3} Prior to the shooting, Clark, Lamar, and Nichole were playing cards with

Maria Whitlow and Ellen Taylor (“Taylor”), at Taylor’s house.            Clark, Lamar, and

Nichole left Taylor’s house to purchase and smoke a “wet” 1 cigarette, which Clark

purchased with $20 he borrowed from Nichole. Clark, Lamar, and Nichole shared the

wet cigarette. When Nichole later dropped Clark off at home, she asked for repayment

of the $20. When Clark told her he was only going to repay her $10 because she smoked

some of the cigarette, she “flipped out.” According to Lamar, Nichole became hysterical

and threatened to call her brother because “y’all got me f––d up.” Nichole telephoned

someone and informed the person on the line that Clark and Lamar were “trying to play



       1   A cigarette dipped in a solution containing PCP.
her * * * and * * * [get] her f––d up.” She also informed the person that she was on

Englewood Road in Cleveland before leaving the scene.

       {¶4} Three to four minutes later, Cordell and Sailor arrived at Englewood Road

and argued with Clark over the $20. Cordell asked Clark, “what the f—k you say to my

sister.” Cordell made a phone call and asked the person on the line, “Nichole, what he

got on?    A blue Nautica jacket?”       While Cordell was arguing with Clark, Lamar

observed that Sailor had a handgun and started running away. Behind him Lamar heard

numerous shots fired and felt a bullet graze his right buttock.

       {¶5} Taylor testified that she telephoned Nichole sometime after Nichole left her

house, and Nichole responded: “I am going to call you back these N––s got to be f––d up.

 These N––s got to be f––d up.” Nichole told her she was going to call her brother, and

a moment later, she told Taylor that her brother was on the other line. Taylor was

concerned for Nichole and repeatedly tried to call her, but Nichole kept hanging up on

her.

       {¶6} Three residents of Englewood Road witnessed the events. Tenitta Johnson

(“Johnson”) called police after observing the argument. She testified that she had a good

look at the men and identified Cordell as one of them. Joseph Mayhand (“Mayhand”)

heard one of the men say to Clark, “I’m gonna call my sister and if she says this is you,

then your ass is out.” Mayhand also observed another man with a gun. Brandon Gibbs

(“Gibbs”), who was on Englewood at the time of the shooting, saw Clark and Lamar

arguing with two men he did not know. He overheard one of them say to Clark, “You
can’t talk to my sister like that” and “My sister said you did. I’m about to call her right

now. If she says you did it, you outta here.” Larry Braxton (“Braxton”), who was with

Gibbs, and lives on Englewood, began walking toward the group but turned around when

he noticed that one of the men had a gun. Braxton identified Sailor as the person with

the gun.

       {¶7} Sailor testified in his own behalf and stated that he was with Cordell at the

Benjamin Bar on the evening of the shooting until around 12:40 a.m. According to

Sailor, they left the Benjamin Bar and went directly to another bar called 4U2B where

they stayed until 2:00 a.m. before going to a party at St. Aloysius.

       {¶8} The jury found Sailor guilty on all counts, except having a weapon while

under disability. The court sentenced Sailor to 28 years to life. At the sentencing

hearing, Cordell, who had not testified at trial, told the court that he was with a man

named Will on the night of the shooting and that Sailor was not present.

       {¶9} Sailor filed a motion for a new trial based on newly discovered evidence,

approximately six weeks after sentencing. At a hearing on the motion, Cordell testified

that he shot Clark in self-defense and that Sailor had nothing to do with it. Cordell stated

that another person, William Sizemore (“Sizemore”), was with him the night of the

shooting. The trial court denied the motion for a new trial. In a direct appeal, Sailor

argued, inter alia, that he was denied due process of law when the court denied his motion

for a new trial where Cordell established his actual innocence. This court affirmed the
trial court’s judgment denying the motion for new trial. State v. Ru-El Sailor, 8th Dist.

Cuyahoga No. 83552, 2004-Ohio-5207, ¶ 41-47.

       {¶10} On April 12, 2013, Sailor filed a motion for leave to file a motion for new

trial, or in the alternative, petition for postconviction relief. Sailor attached an affidavit

from Clark’s brother, Umar Clark (“Umar”), in which he states:

       1. I received a phone call from William Sizemore after Cordell Hubbard
       and Ru-El Sailor were convicted of murdering my brother. He said he had
       to meet with me. He said he wanted to bring closure to this matter;

       2. I met with him a couple days later. He told me that he wanted to let me
       know what my brother’s last words were. He explained that “he tried like
       hell to stop this.” Sizemore told me everything that occurred that evening.
       Sizemore was a few feet away from my brother when he was killed;

       3. The name Ru-El Sailor never came up;

       4. Sizemore advised me that he asked Cordell why he shot Omar. He
       reported that Hubbard just had a blank look on his face;

       5. I never shared this information with any of Mr. Sailor’s attorneys.

       Further, affiant sayeth naught.

The trial court denied Sailor’s motion for leave to file a motion for a new trial, or in the

alternative, petition for postconviction relief without a hearing. Sailor now appeals and

raises two assignments of error.

       {¶11} In the first assignment of error, Sailor argues he was denied due process of

law when the court overruled his motion for leave to file a motion for a new trial without

a hearing. In the second assignment of error, Sailor argues he was denied due process of
law when the court overruled his motion for a new trial. We discuss these assigned

errors together because they are interrelated.

       {¶12} Pursuant to R.C. 2953.23(A), a court may not entertain an untimely petition

for postconviction relief unless defendant initially demonstrates either (1) he was

unavoidably prevented from discovering facts necessary for the claim for relief, or (2) the

United States Supreme Court recognized a new federal or state right that applies

retroactively to persons in defendant’s situation. R.C. 2953.23(A)(1)(a).

       {¶13} With respect to motions for a new trial, Crim.R. 33(B) similarly provides

that motions for a new trial on account of newly discovered evidence shall be filed within

120 days after the day upon which the verdict was rendered or from the trial court’s

decision. If a defendant seeks a new trial after the 120-day time period, he must first

obtain leave from the trial court by demonstrating by clear and convincing evidence that

he 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). State v. Fortson,

8th Dist. Cuyahoga No. 82545, 2003-Ohio-5387, ¶ 10.

       {¶14} To obtain a new trial based on “newly discovered evidence” after the

120-day time limit has passed, the defendant must establish that the newly discovered

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.

       {¶15} The Ohio Supreme Court has held that a trial court may, in the exercise of

its sound discretion, weigh the credibility of affidavits submitted in support of a motion

for a new trial based upon newly discovered evidence. State v. Calhoun, 86 Ohio St.3d

279, 714 N.E.2d 905 (1999). In assessing the credibility of affidavits, the trial court

should consider all relevant factors, including, but not limited to:

       (1) whether the judge reviewing the postconviction relief petition also
       presided at the trial, (2) whether multiple affidavits contain nearly identical
       language, or otherwise appear to have been drafted by the same person, (3)
       whether the affidavits contain or rely on hearsay, (4) whether the affiants
       are relatives of the petitioner, or otherwise interested in the success of the
       petitioner’s efforts, and (5) whether the affidavits contradict evidence
       proffered by the defense at trial.

Id. at 285.    The trial court may also “find sworn testimony in an affidavit to be

contradicted by evidence in the record * * *, or to be internally inconsistent, thereby

weakening the credibility of that testimony.” Id.

       {¶16} Crim.R. 33 does not require a hearing on the motion. State v. Williams, 8th

Dist. Cuyahoga No. 99136, 2013-Ohio-1905, ¶ 18. To warrant a hearing, the newly

discovered evidence must present a strong possibility that a new trial might reach a

different result. Id. at ¶ 13. We will not disturb the trial court’s decision to deny a

motion for new trial based on newly discovered evidence absent an abuse of discretion.

State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 85.
       {¶17} The affidavit offered in support of Sailor’s motion is practically devoid of

any detail.    Moreover, the sworn testimony is contradicted by the testimony of

eyewitnesses who observed not only that Sailor was with Cordell, but that Sailor was

holding the gun at the time of the shooting. As previously stated, Lamar ran from the

scene when he noticed Sailor was holding a handgun. Braxton, a disinterested witness,

also testified that he saw Sailor holding a gun. Thus, the newly discovered evidence

merely contradicts competent credible evidence adduced at trial and is insufficient to

warrant a new trial. Petro, 148 Ohio St. 505, 76 N.E.2d 370, at syllabus.

       {¶18} Moreover, the idea that Sizemore was present at the scene in lieu of Sailor

cannot be considered “newly discovered” because Cordell testified at the hearing on the

first motion for new trial that Sizemore was present at the shooting, instead of Sailor.

Therefore, we cannot say that the trial court abused its discretion when it determined that

Sailor’s “newly discovered evidence” failed to disclose a strong probability that it would

change the result if a new trial were granted.

       {¶19} The first and second assignments of error are overruled.

       {¶20} Judgment affirmed.

       It is ordered that appellee recover from 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the common

pleas 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.



EILEEN T. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and
SEAN C. GALLAGHER, J., CONCUR
