[Cite as State v. Moore, 2014-Ohio-358.]

                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT

STATE OF OHIO,                                      )
                                                    )
        PLAINTIFF-APPELLEE,                         )
                                                    )              CASE NO. 13 MA 9
V.                                                  )
                                                    )                    OPINION
ERIC MOORE,                                         )
                                                    )
        DEFENDANT-APPELLANT.                        )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Court of Common
                                                    Pleas of Mahoning County, Ohio
                                                    Case No. 98CR136

JUDGMENT:                                           Affirmed

APPEARANCES:
For Plaintiff-Appellee                              Paul Gains
                                                    Prosecutor
                                                    Ralph Rivera
                                                    Assistant Prosecutor
                                                    21 W. Boardman ST., 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellant                             Eric Moore, Pro-se
                                                    #333-698
                                                    Trumbull Correctional Institution
                                                    5701 Burnett Road
                                                    P.O. Box 901
                                                    Leavittsburg, Ohio 44430

JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro


                                                    Dated: January 31, 2014
[Cite as State v. Moore, 2014-Ohio-358.]
DONOFRIO, J.

        {¶1}     Defendant-appellant Eric L. Moore appeals a decision of the Mahoning
County Common Pleas Court overruling his motion for a new trial.
        {¶2}     On January 27, 1996, a dance was held at The Pub, which is located in
Kilcawley Center on the campus of Youngstown State University, in the city of
Youngstown, Mahoning County, Ohio.1 (Tr. 41). In attendance at the dance were
several YSU football players, namely William Walker, Leon Jones, John Phillip
Baptiste, and the victim, Jermaine Hopkins. (Tr. 41, 210, 385-86).
        {¶3}     While at the dance, an altercation erupted when William Walker’s
girlfriend accidentally bumped into Timothy Slocum, a co-defendant in this case. (Tr.
42). When Walker approached Slocum to apologize, Slocum pushed him and a fight
ensued. (Tr. 42). Jones, Baptiste and Hopkins tried to break up the fight and
separate the combatants. (Tr. 42-43). Eventually, the YSU police arrived, canceled
the dance and ordered everyone to leave. (Tr. 43-44). However, Slocum continued to
make threats; saying that he would be back and that he was going to kill all of the
men involved in the fight. (Tr. 49).
        {¶4}     Upon leaving the dance, the football players went to prepare for an
after-dance party at a house located at 107 Park Avenue in Youngstown where
several YSU football players, including Hopkins and Jones, resided. (Tr. 36, 209,
211-212, 388).
        {¶5}     Meanwhile, Slocum and an individual named Anthony Howell went to
the Class Act bar. (Tr. 266). After a short stay at the Class Act, Slocum left the bar
with Moore and several others and proceeded in separate vehicles to the after-dance
party being held by the football players at 107 Park Avenue in Youngstown. (Tr. 267).
        {¶6}     When Slocum arrived at the party, Mack Gilchrist, another YSU football
player, stopped him and asked him to leave. (Tr. 76-77). Slocum said that he wanted
the men involved in the fight at The Pub. (Tr. 254). Ultimately, punches were thrown,
shots were fired and Jermaine Hopkins was hit in the head and subsequently died.
(Tr. 652).

1. The underlying facts of this case are set forth nearly verbatim from this Court’s decision concerning
Moore’s direct appeal in State v. Moore, 7th Dist. No. 97-CA-39, 2000 WL 1506206, at *1 - *2 (Sept.
29, 2000).
                                                                               -2-


      {¶7}   Eboni Witherspoon, who was patting down female guests before they
entered the party, testified that she observed two men approach the party, saw
Moore throw a punch at Baptiste, saw a gun and heard three gun shots. (Tr. 131,
135, 137, 143). Elizabeth Williams provided the police with a statement which
indicated that she witnessed Moore shoot the gun. (Tr. 171). Darnell Bracy, a football
player that was affiliated with Slocum on the night in question, also informed the
police that appellant was the shooter and that he saw appellant shoot Jermaine
Hopkins. (Tr. 252, 352).
      {¶8}   Leon Jones also testified that he saw Moore approach the party and
pull a gun out from behind his back. (Tr. 392). Jones further testified that Moore shot
the gun right over his ear, prompting him to run inside the house. (Tr. 392, 394).
      {¶9}   Following a jury trial, Moore was found guilty of aggravated murder and
attempted aggravated murder, along with firearm specifications on each. Accordingly,
on February 11, 1997, Moore was sentenced to life imprisonment on the aggravated
murder charge; an indefinite incarceration term of not less than ten nor more than
twenty-five years on the attempted aggravated murder charge; and, three years on
each firearm specification to be served consecutively with the prior imposed
sentences.
      {¶10} Thereafter, Moore filed a timely appeal in this Court in which he raised
four assignments of error. Specifically, Moore argued that he was denied a fair trial
by “the trial court’s open and obvious bias” against him; that the trial court committed
reversible error when it permitted the state to impeach two of its own witnesses
without a showing of either surprise or affirmative damage; that his indictment was
invalid because an unauthorized individual was present in the grand jury room when
one of the witnesses testified; and that he was denied effective assistance of
counsel.
      {¶11} On September 29, 2000, this Court found all of Moore’s assignments of
error to be without merit and thus affirmed the judgment of the trial court. State v.
Moore, 7th Dist. No. 97-CA-39, 2000 WL 1506206 (Sept. 29, 2000).
      {¶12} On August 17, 2012, pursuant to Crim.R. 33, counsel for Moore filed a
                                                                              -3-


delayed motion for a new trial based on newly discovered evidence in Mahoning
County Common Pleas Court. Despite the motion’s untimeliness, it should be noted
that Moore did not first file a motion for leave to file a motion for new trial.
Nonetheless, in support, Moore attached an affidavit of Butler Johnson, in which
Johnson averred that both he and Elizabeth Williams offered coerced written
statements and subsequent testimony to avoid prosecution. Additionally, Moore
attached a memorandum in support in which Moore argued that although he filed his
motion for a new trial outside of Crim.R. 33’s 120 day time-limit, he was unavoidably
prevented from the discovery of this evidence because he was incarcerated for the
duration of the proceedings against him. Moore offered no other evidence to
establish that he was unavoidably prevented from discovering the new evidence.
Nonetheless, Moore concluded Johnson’s affidavit entitled him, at the very least, to a
hearing to establish by clear and convincing evidence that he was indeed
unavoidably prevented from discovering the evidence.
         {¶13} On January 15, 2013, the trial court overruled Moore’s motion for new
trial.
         {¶14} Moore timely appealed the trial court’s judgment and filed a motion for
appointment of new counsel.
         {¶15} Proceeding pro se on appeal, Moore’s sole assignment of error states:

               APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
         COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE
         UNITED STATES CONSTITUTION.

         {¶16} The standard for determining ineffective assistance of counsel was set
out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668,
669, 104 S.Ct. 2052 (1984). In order to demonstrate ineffective assistance of
counsel, an appellant must first show that his defense counsel was deficient. Id. This
requires that appellant show that his defense counsel’s performance fell below an
objective standard of reasonableness. Id. Secondly, an appellant must then prove
that he was prejudiced by defense counsel’s deficiency. This requires that appellant
                                                                                 -4-


show that there is a “reasonable probability that but for [defense] counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at
694.
        {¶17} Here, Moore argues that his defense counsel was deficient in failing to
first seek and obtain leave from the trial court before filing his untimely motion for new
trial pursuant to Crim.R. 33. Suggesting that he was also prejudiced by his counsel’s
deficiency, Moore further asserts that but for counsel’s failure to file for leave, this
Court would not have construed Moore’s motion as a petition for post-conviction
relief. Thus, Moore concludes, “[i]f not for counsel’s deficient and prejudicial
performance, appellate [sic] would have had proper new trial proceedings and a
hearing on his motion.”
        {¶18} In response, the state concedes that Moore’s counsel failed to seek and
obtain leave and thus failed to establish that he was unavoidably prevented from
discovering the new evidence – and further failed to establish that he filed his motion
within a reasonable time upon discovering said evidence. However, the state argues
that based on the record, the trial court’s judgment would have been the same even if
Moore’s counsel had properly filed the motion for leave. In short, the state argues
that even if Moore’s counsel was deficient, Moore was not prejudiced by his
counsel’s shortcomings as the trial court would have denied Moore’s motion all the
same.
        {¶19} In this case, the performance of Moore’s counsel was neither deficient
nor prejudicial. A trial court’s decision to grant or deny a new trial on grounds of
newly discovered evidence falls within the court’s sound discretion. State v. Hawkins,
66 Ohio St.3d 339, 350, 612 N.E.2d 1227 (1993). Likewise, it is within the trial court’s
discretion to determine whether or not it is necessary to hold an evidentiary hearing
on a new trial motion. State v. Green, 7th Dist. No. 05 MA 116, 2006-Ohio-3097, ¶
11. Therefore, such a decision cannot be reversed absent an abuse of discretion.
Abuse of discretion connotes more than an error of law or judgment; it implies the
trial court’s judgment was arbitrary, unreasonable, or unconscionable. State v.
Adams, 62 Ohio St.2d 151, 157, 56 N.E.2d 654 (1980).
                                                                                 -5-


       {¶20} Moore’s filing a motion for a new trial some fifteen years following his
conviction certainly raises the question of timeliness. Crim.R. 33(B) addresses
timeliness when the basis of a new trial motion is newly discovered evidence:

              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.

       {¶21} Because Moore’s new trial motion was filed well outside the 120-day
period, he was required to obtain leave of court.
       {¶22} Leave of court must be granted before the merits of the motion are
reached. State v. Lordi, 149 Ohio App.3d 627, 2002-Ohio-5517, 778 N.E.2d 605, ¶
25 (7th Dist.). The moving party must prove unavoidable delay by clear and
convincing evidence in order to obtain leave. Id. at ¶ 26; Crim.R. 33(B). Unavoidable
delay results when the party had no knowledge of the existence of the 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. Id. citing,
State v. Walden, 19 Ohio App.3d 141, 146, 1483 N.E.2d 859 (10th Dist.1984). The
requirement of clear and convincing evidence puts the burden on the defendant to
prove he was unavoidably prevented from discovering the evidence in a timely
manner. State v. Fortson, 8th Dist. No. 82545, 2003-Ohio-5387, ¶ 12.
       {¶23} In his new trial motion, the only reason Moore offered that he was
unavoidably prevented from discovering the allegations contained within the affidavit
was that he was incarcerated. However, Moore’s post-trial incarceration does not
justify his failure to discover the allegations contained within the affidavit earlier. It
                                                                              -6-


has been recognized that “the fact of a defendant’s incarceration, without more, does
not equate to clear and convincing evidence that he was unavoidably prevented from
discovering the evidence within the time parameter established by Crim.R. 33(B).”
State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 40. Accord State v.
Golden, 10th Dist. No. 09AP-1004, 2010-Ohio-4438, ¶ 16.
      {¶24} Even though Moore has been incarcerated, he does not explain how he
has been prevented from contacting the affiant, Butler Johnson. Indeed, it is
unreasonable for Moore not to have attempted to contact Johnson sooner if he knew
that Johnson and Elizabeth Williams had provided false testimony. Moore was
present at his own trial where Johnson and Elizabeth Williams presumably testified. If
he genuinely knew Johnson’s or William’s testimony to be false, he should have
known that at the time of their testimony. Consequently, it was upon Moore to
exercise reasonable diligence to make efforts to obtain an affidavit from one of them
establishing the fact of their false testimony and the reasons for it a lot sooner than
fifteen years following his conviction. In other words, Moore did have knowledge of
the existence of the ground supporting the motion from the time of his trial and,
although he was incarcerated, he could have contacted the witnesses himself or
through representatives and investigated the nature of the alleged false testimony
and the reasons behind it.
      {¶25} Moreover, even if we were to reach the substantive merits of Moore’s
new trial motion, the credibility surrounding the sole affidavit in support is
circumspect. Johnson averred that his and Elizabeth Williams’s testimony was
coerced by investigators. This suggests that their testimony was false and that he
and Williams would be recanting or that their testimony could have been impeached.
As this Court observed in State v. Brown, 186 Ohio App.3d 309, 2010-Ohio-405, 318,
927 N.E.2d 1133 (7th Dist.) at ¶ 20:

             “Newly discovered evidence must do more than merely impeach
      or contradict evidence at trial, and there must be some compelling
      reason to accept a recantation over testimony given at trial.” State v.
                                                                                -7-


      Fortson, 8th Dist. No. 82545, 2003-Ohio-5387, 2003 WL 22312206, ¶
      13. “[N]ewly discovered evidence which purportedly recants testimony
      given at trial is ‘looked upon with the utmost suspicion.’” State v.
      Germany (Sept. 30, 1993), 8th Dist. No. 63568, 1993 WL 389577, *6,
      quoting United States v. Lewis (C.A.6, 1964), 338 F.2d 137, 139.
      “Recanting affidavits and witnesses are viewed with extreme suspicion
      because the witness, by making contradictory statements, either lied at
      trial, or in the current testimony, or both times.” State v. Gray, 8th Dist.
      No. 92646, 2010-Ohio-11, 2010 WL 27872, ¶ 29, citing State v. Jones,
      10th Dist. No. 06AP-62, 2006-Ohio-5953, 2006 WL 3240659, ¶ 25, and
      United States v. Earles (N.D.Iowa, 1997), 983 F.Supp. 1236, 1248.

      {¶26} In sum, there was no adequate basis upon which Moore’s counsel
could have obtained leave of court to file the motion for new trial. Had Moore’s
counsel sought leave, the result before the trial court would have been no different.
Therefore, Moore’s counsel was not deficient for not seeking leave of court to file the
motion for a new trial and Moore suffered no prejudice as a result.
      {¶27} Accordingly, Moore’s sole assignment of error is without merit.
      {¶28} The trial court’s judgment is affirmed.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.
