[Cite as State v. Blakely, 2019-Ohio-1483.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-18-1207

        Appellee                                  Trial Court No. CR0200203089

v.

Eugene Blakely, Jr.                               DECISION AND JUDGMENT

        Appellant                                 Decided: April 19, 2019

                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Eugene Blakely, Jr., pro se.

                                              *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Eugene Blakely, Jr., appeals from the August 27, 2018 judgment

of the Lucas County Court of Common Pleas denying appellant’s motion for leave to file

a delayed motion for new trial. For the reasons which follow, we affirm.

        {¶ 2} Appellant was indicted for murder with repeated violent offender and

firearm specifications on October 21, 2002. His first trial ended in a mistrial. During the
second trial, a witness failed to appear despite service of a warrant. The prosecution

moved to admit the witness’s prior trial testimony into evidence. The trial court found

that the witness was unavailable and permitted her testimony to be read at the second

trial. On September 2, 2003, appellant was found guilty of murder with a firearm

specification and was sentenced to an indefinite term of 15 years to life in prison, with a

mandatory 3-year term for the firearm specification.

       {¶ 3} Appellant filed a direct appeal to this court asserting that the trial court erred

in admitting the witness’s prior testimony. We rejected the argument and affirmed his

conviction and sentence. State v. Blakely, 6th Dist. Lucas No. L-03-1275, 2006-Ohio-

185. Appellant has filed two prior motions for leave to file a motion for new trial on the

ground of newly-discovered evidence, both of which were denied by the trial court and

the judgments were affirmed on appeal. State v. Blakely, 6th Dist. Lucas Nos.

L-12-1034, L-12-1074, 2013-Ohio-1080, ¶ 16-17; State v. Blakely, 6th Dist. Lucas Nos.

L-13-1281, L-13-1282 (Mar. 7, 2014).

       {¶ 4} Appellant filed a third motion for leave to file a motion for new trial on

July 24, 2018, asserting he had newly-discovered evidence regarding the unavailable

witness. He asserted he had telephone conversations and e-mails with the witness where

she asserted there had been prosecutorial and police misconduct at the time of both trials.

Appellant also alleged the witness told him she had been forced by the prosecutor and

police to testify falsely in the first trial. Appellant attached to the motion the e-mails he

allegedly received from the witness. In an e-mail dated February 6, 2018, the witness




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indicated she was surprised appellant had contacted her but did not mention any of the

above allegations of misconduct. Appellant also attached his affidavit indicating that the

witness had contacted him in February 2018, and told appellant that the prosecutor and

detective made her testify falsely in the first trial. Appellant summarized the telephone

conversations he allegedly had with the witness.

         {¶ 5} The prosecution moved to dismiss the motion on the ground that appellant

had failed to demonstrate that this was newly-discovered evidence since he had initiated

the contact with the witness and could have done so at the time of the second trial. The

trial court denied the motion on August 27, 2018, without a hearing. Appellant appeals

and asserts the following sole assignment of error:

                THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

         FAILED TO HOLD A HEARING ON BLAKELY’S MOTION FOR

         LEAVE TO FILE A MOTION FOR A NEW TRIAL WHEN THE FACTS

         AND CIRCUMSTANCES SUPPORT BLAKELY’S CLAIM THAT HE

         WAS UNAVOIDABLY PREVENTED FROM DISCOVERING THE

         EVIDENCE, IN DIRECT VIOLATION OF HIS 4TH, 6TH AND 14TH

         AMENDMENT TO THE OHIO AND U.S. CONSTITUTION.

         {¶ 6} Appellant argues in his sole assignment of error that the trial court abused its

discretion when it failed to hold a hearing on his motion for leave to file a motion for new

trial.




3.
        {¶ 7} Pursuant to Crim.R. 33(B), a motion for a new trial based on newly-

discovered evidence must be filed within 120 days after the verdict was rendered unless

the defendant demonstrates by clear and convincing proof that he was unavoidably

prevented from filing a timely motion for new trial. However, 120 days after the verdict

is entered, a defendant must file a motion for leave to file a delayed motion for a new trial

with supporting evidence that the defendant was unable to learn of newly-discovered

evidence earlier.

        {¶ 8} The trial court exercises its discretion in determining whether an evidentiary

hearing is required based on the evidence offered in support of the motion. State v.

Griffin, 1st Dist. Hamilton No. C-160828, 2017 Ohio App. LEXIS 5627, *3 (Dec. 20,

2017). Regarding the merits of the motion for leave, the trial court must determine if the

defendant was unavoidably prevented from discovering the evidence by clear and

convincing evidence, and the trial court’s decision will not be overturned on appeal if it

was supported by some competent and credible evidence. State v. Schiebel, 55 Ohio

St.3d 71, 74, 564 N.E.2d 54 (1990). The supporting affidavit must contain an attestation

of the reason for the delay. State v. Blakely, 6th Dist. Lucas Nos. L-12-1034, L-12-1074,

2013-Ohio-1080, ¶ 17; State v. Peals, 6th Dist. Lucas No. L-10-1035, 2010-Ohio-5893,

¶ 23.

        {¶ 9} Both the decision to rule on the motion for leave without a hearing and the

ruling on the motion for leave are within the discretion of the trial court and will not be

overturned on appeal absent a showing of an abuse of discretion. Schiebel at paragraph




4.
one of the syllabus; State v. Galloway, 6th Dist. Lucas Nos. L-16-1179, L-16-1180, 2017-

Ohio-5841, ¶ 15. An abuse of discretion is found when the trial court’s decision is

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

219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404

N.E.2d 144 (1980).

       {¶ 10} In the case before us, appellant did not attest to why he was prevented from

making contact with the witness within the 120-day deadline for filing a motion for new

trial. The e-mails attached to the motion indicate that appellant initiated the contact with

the witness but did not explain why he could not have contacted her earlier. Furthermore,

appellant did not attest as to why he delayed until July 2018, to file a motion for leave.

While he asserts reasons for the delay on appeal, he did not include his reasons within his

motion. Therefore, we find the trial court did not abuse its discretion in denying the

motion for leave without holding an evidentiary hearing. Griffin at *2. Appellant’s sole

assignment of error is found not well-taken.

       {¶ 11} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Lucas County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                         Judgment affirmed.




5.
                                                                      State v. Blakely
                                                                      C.A. No. L-18-1207




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Christine E. Mayle, P.J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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