[Cite as State v. Davis, 2013-Ohio-846.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                   )

STATE OF OHIO                                         C.A. No.       12CA010256

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
IAN R. DAVIS                                          COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE Nos. 91CR040924
                                                                 93CR043666

                                  DECISION AND JOURNAL ENTRY

Dated: March 11, 2013



        MOORE, Presiding Judge.

        {¶1}     Defendant-Appellant, Ian R. Davis (a.k.a. Benson Davis), appeals from the

judgment of the Lorain County Court of Common Pleas which denied his motion for leave to file

a delayed motion for a new trial. We affirm.

                                                 I.

        {¶2}     In 1994, a jury convicted Mr. Davis of aggravated murder and felonious assault

for his participation in the brutal killing of Marsha Blakely. Based upon his convictions, the trial

court sentenced Mr. Davis to life imprisonment. Mr. Davis directly appealed, and this Court

affirmed the trial court’s decision. See State v. Davis, 9th Dist. No. 94CA005989, 1996 WL

121998, *1 (Mar. 20, 1996). In 1998, Mr. Davis filed a delayed motion for a new trial pursuant

to Crim.R. 33(A)(2) and (6). The trial court denied his motion and this Court affirmed the trial

court’s decision because “[Mr.] Davis made no attempt to show the trial court why he was
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unavoidably prevented from discovering the evidence before January 20, 1995.” State v. Davis,

9th Dist. No. 98CA007062, 1999 WL 194473, *1 (Mar. 31, 1999).

       {¶3}    Approximately fourteen years later, Mr. Davis again moved the trial court for

leave to file a delayed motion for a new trial. He attached the following evidence in support of

his motion: (1) his own affidavit claiming innocence, (2) a copy of AT&T long distance

telephone records from New York State to Lorain, Ohio, dated June 27th to August 10th, without

any verifying information regarding the year these calls were made or the number from which

these calls were made, (3) a copy of an investigative report regarding inmate William Avery’s

statements about a corrections officer allegedly allowing one of Mr. Davis’ co-defendants to

threaten him in jail, and (4) the affidavit of William Avery, the State’s witness, recanting his

former testimony that he witnessed Marsha Blakely’s murder. The trial court denied Mr. Davis’

motion for leave to file a delayed motion for a new trial.

       {¶4}     Mr. Davis timely appealed, raising one assignment of error for our review.

                                                 II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AND VIOLATED [] [MR. DAVIS’] FIFTH,
       SIXTH, AND FOURTEENTH AMENDMENT RIGHT[S] WHEN IT DENIED
       [] [HIS] MOTION FOR LEAVE TO FILE DELAYED MOTION FOR NEW
       TRIAL WITHOUT DETERMINING WHETHER [] [HE] WAS
       UNAVOIDABLY PREVENTED FROM DISCOVERING THE EVIDENCE
       WITHIN 120 DAYS OF THE JURY’S VERDICT AS MANDATED
       PURSUANT TO CRIM.R. 33(B)[.]

       {¶5}    In his first assignment of error, Mr. Davis contends that the trial court erred in

denying his motion for leave to file a delayed motion for a new trial without first holding a

hearing to determine whether there was sufficient evidence to satisfy the unavoidable delay

standard. We disagree.
                                                  3


       {¶6}    A trial court's decision to grant or deny a motion for leave to file a delayed motion

for a new trial will not be reversed on appeal absent an abuse of discretion. State v. Holmes, 9th

Dist. No. 05CA008711, 2006-Ohio-1310, ¶ 8, citing State v. Schiebel, 55 Ohio St.3d 71 (1990),

paragraph one of the syllabus. “‘Likewise, the decision on whether the motion warrants a hearing

also lies within the trial court’s discretion.’” Holmes at ¶ 8, quoting State v. Starling, 10th Dist.

No. 01AP-1344, 2002-Ohio-3683, ¶ 10, citing State v. Hensley, 12th Dist. No. CA2002-01-002,

2002-Ohio-3494, ¶ 7. An abuse of discretion implies that the court’s attitude is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When

applying the abuse of discretion standard, an appellate court may not substitute its judgment for

that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶7}    Pursuant to Crim.R. 33(A)(6), a new trial may be granted on the motion of the

defendant “[w]hen new evidence material to the defense is discovered, which the defendant

could not with reasonable diligence have discovered and produced at the trial.” Further, Crim.R.

33(B) states, in relevant part, that if the basis of the motion is newly discovered evidence, it:

       shall be filed within one hundred twenty days after the day upon which the verdict
       was rendered[.] 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 [trial] court finding that he was unavoidably prevented from discovering the
       evidence within the one hundred twenty day period.

(Emphasis added.) Additionally, “‘[c]lear and convincing proof requires more than a mere

allegation that a defendant has been unavoidably prevented from discovering the evidence he

seeks to introduce as support for a new trial.’” State v. Gilcreast, 9th Dist. No. 26311, 2013-

Ohio-249, ¶ 4, quoting State v. Covender, 9th Dist. No. 07CA009228, 2008-Ohio-1453, ¶ 6,

quoting State v. Mathis, 134 Ohio App.3d 77, 79 (1st Dist.1999), overruled on other grounds.

Finally, “[u]navoidable delay results when the party had no knowledge of the existence of the
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ground supporting the motion for a new trial and could not have learned of the existence of that

ground within the required time in the exercise of reasonable diligence.” Covender at ¶ 14,

quoting State v. Rodriguez–Baron, 7th Dist. No. 12-MA-44, 2012-Ohio-5360, ¶ 11.

       {¶8}    Here, Mr. Davis moved for leave to file a delayed motion for a new trial based

upon newly discovered evidence approximately 18 years after the verdict was rendered in this

matter. In his motion, Mr. Davis stated that he was unavoidably prevented from discovering the

new evidence because: (1) his trial counsel intentionally suppressed and/or withheld the AT&T

telephone records, and (2) the State intentionally withheld and/or suppressed the county jail’s

investigative report with regard to whether the State’s witness, William Avery, Jr., was

threatened by a co-defendant in this case. Also, according to Mr. Davis’ affidavit, he obtained

the AT&T telephone records in October of 2011, by filing a request with the clerk of the

Supreme Court of New York County, and he received the jail’s investigative report from a co-

defendant in November of 2011.

       {¶9}    First, the record clearly indicates that Mr. Davis was aware of the existence of the

AT&T telephone records during the 1994 trial because both he and his girlfriend testified that he

made these telephone calls from New York to Ohio on and after the date Marsha Blakely was

murdered. Further, in his affidavit, Mr. Davis states that his “trial counsel had [the phone

records] originally, but claimed that he lost this document and could not obtain it again.”

Inasmuch as Mr. Davis obtained these telephone records in October of 2011 simply by

requesting them from the New York clerk of courts, we see nothing to indicate that he could not

have requested the records within one hundred and twenty days after the verdict was rendered.

Further, upon obtaining the AT&T telephone records, Mr. Davis waited an additional eight

months to file his motion.
                                                 5


       {¶10} Although “Crim.R. 33(B) does not provide a specific time limit for the filing of a

motion for leave to file a delayed motion for new trial[,] * * * Ohio courts have adopted a

reasonableness standard.” State v. Cleveland, 9th Dist. No. 08CA009406, 2009-Ohio-397, ¶ 49.

“If there has been 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.” (Internal quotations omitted.) Id. In the

present matter, Mr. Davis’ motion and affidavit fail to provide clear and convincing proof as to

why he was unavoidably prevented from discovering the telephone records in a timely manner.

Also, Mr. Davis provides no explanation as to why it was reasonable for him to wait an

additional eight months to file his motion for leave after obtaining the telephone records.

       {¶11} Second, the record indicates that Mr. Davis acquired both the jail investigative

report, and Mr. Avery’s affidavit recanting his trial testimony in November of 2011. Although

the jail investigative report is dated December 23, 1991, and Mr. Avery’s affidavit was signed in

February of 2006, Mr. Davis claims that he did not obtain this evidence until 2011. Mr. Davis

does not provide clear and convincing proof as to why he was unavoidably prevented from

discovering this evidence in a timely manner. Further, Mr. Davis waited an additional seven

months after discovering this evidence to file his motion for leave. Again, Mr. Davis provides

no explanation regarding the reasonableness of his actions in waiting seven additional months to

file his motion.

       {¶12} Based upon the record before us, we conclude that Mr. Davis did not meet his

burden of providing clear and convincing proof that he was unavoidably prevented from

discovering this evidence within the requisite time frame after the verdict was rendered, or that

he filed his motion for leave to file a delayed motion for new trial within a reasonable time after
                                                 6


obtaining the newly discovered evidence. Further, a hearing on the motion was not warranted

because the evidence, on its face, did not support Mr. Davis’ claim that he was unavoidably

prevented from timely discovery of the evidence.          See State v. Cleveland, 9th Dist. No.

08CA009406, 2009-Ohio-397, ¶ 54 (stating that the appellant was not entitled to a hearing on his

motion where he failed to “submit[] documents which, on their face, support his claim that he

was unavoidably prevented from timely discovering the evidence at issue.”). Therefore, the trial

court did not abuse its discretion in denying Mr. Davis’ motion without a hearing.

       {¶13} We also note that Mr. Davis makes several arguments regarding the merits of his

delayed motion for a new trial, including: (1) prosecutorial misconduct (2) ineffective assistance

of trial counsel, and (3) the recantation of testimony. Because Mr. Davis’ delayed motion for a

new trial is not properly before this court, we decline to address these arguments at this time.

       {¶14} Mr. Davis’ sole assignment of error is overruled.

                                                III.

       {¶15} In overruling Mr. Davis’ sole assignment of error, the judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    CARLA MOORE
                                                    FOR THE COURT



CARR, J.
WHITMORE, J.
CONCUR.


APPEARANCES:

IAN DAVIS, pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
