       [Cite as State v. Chamblin, 2014-Ohio-3895.]


                         IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-130828
                                                          TRIAL NO. B-0903691
       Plaintiff-Appellee,                            :

       vs.                                            :      O P I N I O N.

JAMES E. CHAMBLIN,                                    :

       Defendant-Appellant.                           :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 10, 2014



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

James E. Chamblin, pro se.




Please note: we have removed this case from the accelerated calendar.
                 OHIO FIRST DISTRICT COURT OF APPEALS



HILDEBRANDT, Judge.

       {¶1}   Defendant-appellant James E. Chamblin appeals the Hamilton County

Common Pleas Court’s judgment overruling his Crim.R. 33 motion for a new trial.

We affirm the court’s judgment.

       {¶2}   Chamblin was convicted in 2010 upon jury verdicts finding him guilty

on three counts of gross sexual imposition and a single count of attempted rape. He

unsuccessfully challenged his convictions on direct appeal, State v. Chamblin, 1st

Dist. Hamilton Nos. C-100177 and C-100170 (Mar. 4, 2011), and in motions for a new

trial filed in 2011 and 2013. See State v. Chamblin, 1st Dist. Hamilton No. C-120417

(Feb. 22, 2013). In this appeal from the overruling of his 2013 motion, he advances

three assignments of error.

       {¶3}   No right to counsel. In his first and second assignments of error,

Chamblin challenges his retained counsel’s effectiveness in preparing and presenting

his motion. The challenge is untenable.

       {¶4}   The United States and Ohio Constitutions confer upon an indigent

criminal defendant a right to appointed counsel that “extends to the first appeal of

right, and no further.” Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95

L.Ed.2d 539 (1987); State v. Crowder, 60 Ohio St.3d 151, 573 N.E.2d 652 (1991),

paragraph one of the syllabus.      See Crim.R. 44(A) (requiring that counsel be

appointed for an indigent defendant charged with a “serious offense * * * from his

initial appearance before a court through [his] appeal as of right”). Thus, Chamblin

did not have a constitutionally secured right to counsel on his motion for a new trial

filed after we had decided his direct appeal. See Finley at 555 (holding that the

federal constitution does not confer a right to counsel in a collateral attack upon a




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                 OHIO FIRST DISTRICT COURT OF APPEALS



conviction); Crowder at paragraph one of the syllabus (holding that a postconviction

petitioner does not have a state or federal constitutional right to counsel). Accord

State v. Clumm, 4th Dist. Athens No. 08CA32, 2010-Ohio-342, ¶ 9-12; State v.

Blankenship, 12th Dist. Butler No. CA95-07-120, 1995 Ohio App. LEXIS 5587 (Dec.

18, 1995) (holding that the state and federal constitutions do not afford a right to

counsel for a Crim.R. 33(A)(6) motion filed after exhaustion of direct appellate

review). And he cannot be said to have been denied constitutionally effective counsel

in advancing his new-trial motion. Wainwright v. Torna, 455 U.S. 586, 587-588,

102 S.Ct. 1300, 71 L.Ed.2d 475 (1982); State v. Carter, 93 Ohio St.3d 581, 582, 757

N.E.2d 362 (2001); Lockland v. Plotsker, 1st Dist. Hamilton No. C-130563, 2014-

Ohio-2173, ¶ 4. We, therefore, overrule the first and second assignments of error.

       {¶5}   No abuse of discretion in denying a new trial. In his third

assignment of error, Chamblin contends that the common pleas court abused its

discretion in failing to provide a “full and fair hearing” on his motion, in overruling

the motion, and in failing to enter findings of fact and conclusions of law. We find no

merit to these contentions.

       {¶6}   Chamblin sought a new trial under Crim.R. 33(A)(6), on the ground of

newly discovered evidence.     The rule did not, as Chamblin insists, require the

common pleas court to enter findings of fact and conclusions of law when overruling

his new-trial motion. State ex rel. Collins v. Pokorny, 86 Ohio St.3d 70, 711 N.E.2d

683 (1999); State v. Elliott, 1st Dist. Hamilton No. C-020736, 2003-Ohio-4962, ¶ 11.

But the rule plainly contemplates a hearing.         The nature of that hearing is

discretionary with the court and depends on the circumstances. State v. Carusone,

1st Dist. Hamilton No. C-130003, 2013-Ohio-5034, ¶ 4. We cannot say that the




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                      OHIO FIRST DISTRICT COURT OF APPEALS



common pleas court abused its discretion, when it conducted an evidentiary hearing

on Chamblin’s motion, and the record does not show that the hearing was other than

“full and fair.”

        {¶7}       Crim.R. 33(B) requires that a motion for a new trial on the ground of

newly discovered evidence be filed either within 120 days of the return of the verdict

or within seven days after leave to file a new-trial motion has been granted.

Chamblin did not, as the rule contemplates, first seek leave to move for a new trial.

See Carusone at ¶ 31. But his motion may fairly be read to seek both a new trial and

leave to move for a new trial. And the common pleas court must be said to have

effectively granted leave when it decided the new-trial motion on its merits.

        {¶8}       At the hearing on the motion, Chamblin offered “newly discovered

evidence” in the form of testimony by his two children recanting their testimony at

trial that Chamblin had, on multiple occasions, sexually abused them.              On the

motion, Chamblin bore the burden of proving that this 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. The decision

whether to grant a new trial is committed to the sound discretion of the trial court,

and that decision will not be reversed on appeal unless the court has abused its

discretion. State v. Williams, 43 Ohio St.2d 88, 330 N.E.2d 891 (1975), paragraph

two of the syllabus.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}    The trial record shows that the children had, before trial, variously

disavowed and then reasserted their sexual-abuse claims, and that the defense had,

at trial, extensively explored this matter with the children and other witnesses. In

denying Chamblin a new trial, the common pleas court concluded that, because the

matter of “the kids recanting” had “c[o]me up during the trial,” Chamblin had not

sustained his burden of proving a strong probability of a different result if a new trial

were granted. The record contains competent and credible evidence to support the

court’s conclusion. Therefore, the court cannot be said to have abused its discretion

in overruling Chamblin’s motion for a new trial. See State v. Schiebel, 55 Ohio St.3d

71, 74, 564 N.E.2d 54 (1990), paragraph one of the syllabus.

       {¶10} Accordingly, we overrule the third assignment of error and affirm the

judgment of the court below.

CUNNINGHAM, P.J., and HENDON, J., concur.

Please note:

       The court has recorded its entry on the date of the release of this opinion.




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