[Cite as State v. Cowan, 2020-Ohio-666.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                Plaintiff-Appellee,              :
                                                          No. 108394
                v.                               :

CRAIG A. COWAN,                                  :

                Defendant-Appellant.             :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: February 27, 2020


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-11-550536-A


                                           Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Daniel T. Van, Assistant Prosecuting
                Attorney, for appellee.

                Craig A. Cowan, pro se.


MICHELLE J. SHEEHAN, J.:

                  Craig A. Cowan appeals from the judgment of the Cuyahoga County

Common Pleas Court that denied his motion for leave to file a motion for a new trial.

On appeal, he presents three assignments of error for our review:
   I.     The trial court abused its discretion when it failed to hold a hearing
          on Cowan’s motion for leave to file a motion for new trial when the
          record and circumstances supported Cowan’s claims that he was
          unavoidably prevented from discovering the new evidence in
          violation of the United States Constitution, the Constitution of the
          State of Ohio, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194,
          10 L.Ed. 2d 215 (1963) and State v. Johnston, 39 Ohio St.3d 48,
          60, 529 N.E.2d 898 (1988).

   II.    The trial court abused its discretion when it failed to grant Cowan’s
          motion for leave to file a motion for new trial or hold a hearing
          when Cowan established the state failed to disclose material
          exculpatory evidence in violation of his right to due process under
          the Ohio Constitution and the Constitution of the United States of
          America.

   III.   Alternatively, the trial court abused its discretion when it failed to
          grant Cowan’s motion for leave to file a motion for new trial or hold
          a hearing when Cowan established the ineffective of counsel by
          failing to call as a witness and expert witness, evidence technician,
          lead crime scene investigator and member of Meel #806. Cowan
          did not get a fair trial and received [an] 18-year consecutive
          sentence.

After a review of the record and applicable law, we find no merit to the appeal and

affirm the trial court’s judgment.

Procedural Background

              In 2012, Cowan was convicted of felonious assault, discharge of a

firearm on or near a prohibited premises, having weapons while under disability,

and improperly handling firearms in a motor vehicle after a jury found him guilty of

these offenses. This court affirmed his convictions in State v. Cowan, 8th Dist.

Cuyahoga No. 97877, 2012-Ohio-5723, discretionary appeal not allowed, 135 Ohio

St.3d 1413, 2013-Ohio-1622, 986 N.E.2d 30.
             Since his direct appeal, Cowan has filed multiple appeals and original

actions regarding his convictions, in State v. Cowan, 8th Dist. Cuyahoga No. 97877,

2013-Ohio-1172 (application to reopen denied); State v. Cowan, 8th Dist. Cuyahoga

No. 99566, 2013-Ohio-4475; State v. Cowan, 8th Dist. Cuyahoga No. 100741, 2014-

Ohio-3593; State v. Cowan, 8th Dist. Cuyahoga No. 100741, 2015-Ohio-672

(application for reopening denied); State v. Cowan, 8th Dist. Cuyahoga No. 100741,

2015-Ohio-4271 (second application for reopening denied); State v. Cowan, 8th

Dist. Cuyahoga No. 101995, 2015-Ohio-2271; State v. Cowan, 8th Dist. Cuyahoga

No. 109938; State v. Cowan, 8th Dist. Cuyahoga No. 102938 (June 17, 2015); State

ex rel. Cowan v. Gallagher, 8th Dist. Cuyahoga No. 103470, 2015-Ohio-5156, aff’d,

State ex rel. Cowan v. Gallagher, 147 Ohio St.3d 416, 2016-Ohio-7430, 66 N.E.3d

728; State v. Cowan, 8th Dist. Cuyahoga No. 103855, 2016-Ohio-8045; State ex rel.

Cowan v. Gallagher, 8th Dist. Cuyahoga No. 104666, 2017-Ohio-108, aff’d, State ex

rel. Cowan v. Gallagher, 153 Ohio St.3d 13, 2018-Ohio-1463, 100 N.E.3d 407; State

ex rel. Cowan v. Gallagher, 8th Dist. Cuyahoga No. 104972, 2017-Ohio-471, aff’d,

State ex rel. Cowan v. Gallagher, 153 Ohio St.3d 13, 2018-Ohio-1463, 100 N.E.3d

407; and State v. Cowan, 8th Dist. Cuyahoga No. 106074, 2018-Ohio-1097.

             In his direct appeal, this court summarized the trial testimony as

follows:

            Toni Walcott testified that on the afternoon of May 19, 2011, she,
      her brother Robert, her cousin Artemus Blandling, her aunt Kim
      Blandling, Robert’s girlfriend Celena Glover, Celena’s cousin Albert
      Glover, and Cowan were socializing and drinking. They first convened
at Cowan’s home and then at Kim’s home. At some point that evening,
they decided to go to a bar on Miles Avenue.

        They drove in two cars because they could not all fit in one.
Celena drove Robert and Albert, and Cowan drove Toni, Artemus, and
Kim. According to Toni, Cowan got into an argument with Kim causing
Artemus to tell Cowan he did not like how he was talking to his mother.
Cowan stopped the vehicle and reached under his seat, which caused
them all to think he had a gun. Instead, he got out of the car, as did the
others. He then pulled a gun out of the trunk and held it to Artemus’s
head. Toni was able to talk Cowan out of harming Artemus. Cowan then
sat in the car and shot two times into the ground. He then left.

       Toni called Celena, who came to pick up the stranded
passengers. At that point, Toni told her brother that Cowan had her
laptop at his house. She attempted to call Cowan to ask for permission
to retrieve the computer, but Cowan hung up on her. Her brother then
called him and told him they were on their way to pick up the computer.

       Because of the earlier altercation with Artemus, Celena parked
the car down the street, and Toni and Robert walked the rest of the way
to Cowan’s house. As they reached his house, Cowan jumped out from
behind a tree with two guns drawn. According to Robert, Cowan
ordered them to “lay it down,” an expression used when robbing
someone. Robert said Cowan was four to five feet away from him. He
grabbed Cowan’s hand and twisted it and at the same time the gun went
off. Robert and Toni ran in different directions while Cowan continued
to shoot at them. According to Celena, he also started shooting at her
car, causing her to drive in reverse to get away. Celena later located
Toni running in the street. Toni then used Celena’s cell phone to call
police.

       Darrell Gunter lived next to Cowan. He stated that at around
10:30 p.m. he heard someone loudly say, “I’m going to get you mother
f-er.” He then heard gunshots. He looked out the window and saw a
man wearing the same clothes the other witnesses had described
Cowan wearing, firing a gun. He could not see who he was shooting at,
but claimed he shot about three rounds. Gunter called 911.

      Officer Vasile Nan testified that he and his partner received a call
about shots being fired in the area of East 142nd and Kinsman Road.
As they were canvassing the area to locate the vehicle described in that
shooting, they received a call regarding a shooting at East 139th Street.
As they approached the scene, they saw Toni waving her hands
      frantically, crying, and yelling. She told them her brother had been shot
      down the road and gave Cowan’s name as the shooter, a description of
      his car, and his address. Because the car matched the description of the
      car from the earlier shooting, the officer realized the shootings were
      related.

             The officers proceeded to Cowan’s house, which was a two-
      family duplex. The door of the downstairs unit was open. The residents
      living there verified that Cowan lived upstairs. The officers then went
      upstairs where they found Cowan’s apartment door open but Cowan
      was not present.

             The next morning, Officer Terrance Smith located Cowan’s
      vehicle near Cowan’s residence and notified his supervisor. When back-
      up arrived, two officers went upstairs to Cowan’s apartment and
      knocked loudly and announced “police.” They received no response;
      therefore, the SWAT unit was called. As the SWAT unit and Cleveland
      police set up a perimeter around the house, one of the SWAT officers
      who was standing near an abandoned house next to Cowan’s house
      discovered two weapons near a tree, a 9 millimeter and a revolver.

             A SWAT officer, using the PA system from the SWAT mobile,
      announced several times “Cleveland Police SWAT Unit” and requested
      that “Craig Cowan” come out. Cowan eventually exited the home on his
      own with his arms up. He kneeled on the driveway as directed and was
      handcuffed by SWAT officers. As he was being escorted to the zone car
      he stated, “What’s the big deal? I didn’t hit anybody.” One of the
      arresting officers read Cowan his Miranda rights and inquired if he had
      any more weapons. According to the officer, Cowan turned and looked
      toward the tree where the weapons were recovered and said, “no that
      was it.”

Cowan, 8th Dist. Cuyahoga No. 97877, 2012-Ohio-5723, at ¶ 4-12.

              In his direct appeal, Cowan claimed his convictions were not

supported by sufficient evidence in that the guns were not test-fired to show that

they were in fact operable. This court explained that it is not necessary for a gun to

be test-fired to prove that it was operable and that proof of operability can be

established beyond a reasonable doubt by testimony of lay witnesses who were in a
position to observe the instrument and the circumstances surrounding the crime.

This court concluded that the totality of the circumstances provided proof that the

guns were operable: Celena, Toni, and Robert all testified that Cowan shot at Robert

from close range. Robert saw a flash from one of the guns as it fired, and Cowan’s

neighbor heard gunshots and saw Cowan shooting at someone down the street.

              The Supreme Court of Ohio affirmed this court’s denial of his latest

petition for a writ of mandamus on April 18, 2018. Cowan alleged that, on July 30,

2018, a family friend obtained through a public records request certain Brady

materials not previously disclosed by the prosecutor.        Five months later, on

January 2, 2019, Cowan filed a motion for leave to file a motion for a new trial. He

attached to his motion several pages from the “Offense/Incident Report” in this case,

one of which contained Detective Don Meel’s report of the test result of the guns

retrieved from near Cowan’s residence. He also attached correspondence dated July

30, 2018, on the letterhead of City of Cleveland Department of Law Public Records

Section.

              The trial court denied his motion without a hearing. Cowan now

appeals. All three assignments concern the trial court’s denial of his motion without

a hearing, and we address them together.

Motion for Leave to File a Motion for a New Trial

              Crim.R. 33 governs a motion for a new trial. If a motion for a new trial

is made on grounds of newly discovered evidence, the motion must be filed within

120 days after a verdict. Crim.R. 33(B). If a defendant files a motion for a new trial
after the expiration of that time, the defendant must first seek leave of the trial court

to file a delayed motion for a new trial. State v. Mathis, 134 Ohio App.3d 77, 79, 730

N.E.2d 410 (1st Dist.1999). To obtain leave, the defendant must demonstrate by

clear and convincing proof that he was unavoidably prevented from discovering the

new evidence within the time period specified by Crim.R. 33(B). Mathis. When a

defendant files a motion for leave to file a motion for a new trial, the trial court may

not consider the merits of the motion for a new trial until it first makes a finding of

unavoidable delay. State v. Brown, 8th Dist. Cuyahoga No. 95253, 2011-Ohio-1080,

¶ 14.

               “‘[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 and could not have learned of that existence within the time prescribed for

filing the motion in the exercise of reasonable diligence.’” Brown at ¶ 13, quoting

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

the Second District explained in State v. McConnell, 2d Dist. Montgomery No.

24315, 2011-Ohio-5555, ¶ 18,

        [t]he essence of Crim.R. 33 is that collateral attacks on the validity of
        trial proceedings must be made close in time to the proceeding to
        ensure that any issue raised may be given full and fair consideration.
        The rule equally protects both the finality of verdicts and principles of
        judicial economy. Delays in presenting evidence once discovered
        undermine the [] overall objective of the criminal rules in providing
        the [“] speedy and sure administration of justice, simplicity in
        procedure, and the elimination of unjustifiable delay.” [State v.
        Barnes, 12th Dist. Clermont No. CA99-06-057, 1999 Ohio App. LEXIS
        6421, 1999 WL 1271665, 2 (Dec. 30, 1999).] Allowing a defendant to
        drag the process out while the evidence and the recollections of
      witnesses become increasingly stale defies the very purpose of the
      criminal rules.

              The burden is on the defendant to show by clear and convincing proof

that he was unavoidably prevented from filing his motion within the time prescribed

and he must make such showing with more than a mere allegation that he was

unavoidably prevented from discovering the evidence he seeks to introduce to

support a new trial. State v. Bridges, 8th Dist. Cuyahoga Nos. 103634 and 104506,

2016-Ohio-7298, ¶ 20.

              A defendant is entitled to a hearing on a motion for leave to file a

motion for a new trial only if he submits documents that, on their face, support his

claim that he was unavoidably prevented from timely discovering the evidence in

question. See, e.g., State v. Dues, 8th Dist. Cuyahoga No. 105388, 2017-Ohio-6983,

¶ 12; State v. Ambartsoumov, 10th Dist. Franklin Nos. 12AP-877 and 12AP-878,

2013-Ohio-3011, ¶ 13; State v. Cleveland, 9th Dist. Lorain No. 08CA009406, 2009-

Ohio-397, ¶ 54; and State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, 869

N.E.2d 77 (2d Dist.). In other words, the trial court is required to hold a hearing to

determine whether there is clear and convincing proof of unavoidable delay only if

the court determines that the documents submitted on their face support the

defendant’s claim that he was unavoidably prevented from timely discovering the

evidence.

              A trial court’s decision to grant or deny a motion for leave to file a

delayed motion for a new trial is reviewed for an abuse of discretion. See, e.g., State
v. Washington, 8th Dist. Cuyahoga No. 103875, 2016-Ohio-5329, ¶ 16. The trial

court’s decision whether to hold an evidentiary hearing on a defendant’s request for

leave to file a delayed motion for new trial is also reviewed for an abuse of discretion.

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

Appellant’s Motion for Leave and Supporting Documents

               Cowan attached to his motion for leave three pages (pages 6, 7, and

9) from the “Cleveland Police Department Offense/Incident Report” in this case.

Page 6 of the Offense/Incident Report contained Detective Don Meel’s report

regarding the test result for two firearms and a partially loaded pistol magazine

retrieved from the bushes of 4120 E. 139th Street, near Cowan’s residence. Detective

Meel stated that “these two weapons and ammunition were processed using

cyanoacrolate [fuming] and white powder with negative results. No prints. No

trace.” There was no further explanation as to what a result of “no prints” or “no

trace” indicate.

               To show that Detective Meel’s report was newly discovered evidence

and that he was unavoidably prevented from discovering the evidence, Cowan

attached a correspondence in the letterhead of City of Cleveland Department of Law

Public Records. The document states the following in its entirety:

      07/30/2018

      Craig A. Cowan

      Re: PUBLIC RECORDS REQUEST of July 30, 2018, Reference #
      P006993-073018
      Dear Craig A. Cowan,

      The City of Cleveland received a public record request from you on
      July 30, 2018. You requested the following:

      “Crime Scene Unit Report 2011-00143308”

      This letter will certify that the responsive documents are true,
      accurate, and authentic copies of the records maintained in the
      regular course of business by the City of Cleveland Law Department

      Public Safety- Public Records Request – P006993-073018

      If you have any questions, or wish to discuss this further, please
      contract City of Cleveland Public Records.”

      Sincerely,
      City of Cleveland Public Records

      City of Cleveland
      Mayor Frank G. Jackson

              Five months after the alleged public records request, on January 2,

2019, Cowan filed a motion for leave to file a motion for a new trial. In his motion

for leave, he stated the following:

            Movant has had family friends make public record request to
      the Cleveland Police Department concerning any and all police
      reports related to Cowan’s case and investigation. Some request[s]
      have been more successful than other requested materials.

            Over a period of over 7½ years, family friends have made
      several visits to secure evidence that had been suppressed. This is not
      ordinary information. I present to this court exculpatory evidence.

      ***

            On one visit to the Police Department, family friend was given
      access to the missing CLEVELAND DEPARTMENT INCIDENT
      REPORT of Detective Donald J. Meel. * * *.”
             The state filed a brief opposing Cowan’s motion for leave to file a

motion for a new trial on the ground that, contrary to Cowan’s allegation, the report

in question had been provided to the defense as part of pretrial discovery.

             The state pointed to a Bate stamp at the bottom of the pages that

Cowan purportedly obtained through a public records request and explained that

the Bate stamp reflected that these pages were part of the documents that were

provided through discovery before trial. For example, page 6 — the page containing

Detective Meel’s report — bore the stamp “Cuyahoga County Prosecutor’s Office

5066092 40128 V14560E-65 PKG1 6/10/2011 Page 65,” which indicated the

document was provided through the electronic discovery portal on June 10, 2011,

and was page 65 of the discovery package provided to the defense.

              The state also attached to its brief in opposition an affidavit from the

assistant prosecutor who handled the trial in this case. The affidavit stated that

(1) he prepared a discovery package during the course of prosecuting the case in

response to the discovery request made by the defense pursuant to Crim.R. 16;

(2) the case management system used by the Cuyahoga County Prosecutor’s Office

allowed for discovery to be electronically delivered to defense counsel; and (3) the

nine-page Offense/Incident Report in this case was included in the discovery

package.

              On the record before us, we cannot conclude the trial court abused its

discretion in summarily denying Cowan’s motion for leave to file a motion for a new

trial without a hearing. The documents submitted by Cowan — the correspondence
purportedly showing a public records request on July 30, 2018, concerning the case

and pages from the Cleveland Police Department Offense/Incident Report bearing

Bate stamping by the Prosecutor’s Office — on their face did not support his claim

that he was unavoidably prevented from timely discovering the new evidence. Even

if we assume the authenticity of the public records letter — which the state disputes

— the letter only demonstrates that there was a public records request for a “Crime

Scene Unit Report” in this case and that the Law Department provided documents

in response. This document on its face did not support a claim that Cowan had no

knowledge of the existence of the police report and could not have learned of its

existence timely in the exercise of reasonable diligence.           See, e.g., State v.

Armengau, 10th Dist. Franklin No. 16AP-355, 2017-Ohio-197, ¶ 33 (trial court did

not abuse its discretion in denying appellant’s motion for leave to file a delayed

motion for new trial without holding an evidentiary hearing where appellant failed

to allege facts that would excuse his failure to timely file a motion for new trial).

               In fact, the documents submitted by Cowan did not even seem to

support his claim that the police report was newly discovered evidence — the Bate

stamping by the prosecutor’s office appears to be telling evidence that the document

was part of the discovery package provided to the defense. In order to establish a

defendant was unavoidably prevented from discovering the new evidence, the

defendant must first establish the evidence was “newly discovered.” State v. Davis,

10th Dist. Franklin No. 03AP-1200, 2004-Ohio-6065, ¶ 14. For these reasons, we

are unable to find that the trial court abused its discretion denying Cowan’s motion
for leave to file a motion for a new trial without a hearing.1 The first and second

assignments of error is without merit.

               Under the third assignment of error, Cowan claims that the trial

court’s denial of his motion for leave to file a motion for a new trial was an abuse of

discretion because he has established his trial counsel provided ineffective

assistance in failing to call Detective Meel as a witness at trial. Cowan did not raise

this argument in his motion for leave to file a motion for a new trial. Even assuming

he had raised this claim before the trial court, we note that the ineffective-assistance-

of-counsel claim may conceivably be raised as part of his motion for a new trial if he

successfully demonstrates by clear and convincing evidence that he was unavoidably

prevented from timely discovering the evidence in question. As we have explained

in the foregoing, Cowan failed to present documents to support the threshold issue

that he was avoidably prevented from timely discovering the evidence. Accordingly,

the third assignment of error also lacks merit.

               Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.


      1  In his brief on appeal, Cowan appears to argue that Detective Meel’s report
constituted newly discovered evidence because it was not provided to him either directly
or through counsel. He states in his brief that “[t]he prosecutor has revealed that it is
acceptable not to disclose favorable information to the defendant, as long as [they say] it
was furnished/provided through the electronic discovery portal to the defense counsel.”
Even assuming Cowan did not know of the existence of Meel’s report as he alleged, we
note that Crim.R. 16 only requires discovery to be provided to the defendant’s counsel.
There is no case law authority requiring discovery to be provided to a defendant
represented by counsel. As such, we are unwilling to hold that evidence that was not
provided to a represented defendant constituted new evidence for purposes of a motion
for leave to file a motion for a new trial.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue 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.



MICHELLE J. SHEEHAN, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
