[Cite as State v. DeVaughns, 2018-Ohio-1421.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 27727
                                                     :
 v.                                                  :   Trial Court Case No. 2006-CR-843
                                                     :
 CHRISTOPHER A. DEVAUGHNS                            :   (Criminal Appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                                OPINION

                             Rendered on the 13th day of April, 2018.

                                                ...........

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

CHRISTOPHER A. DEVAUGHNS, Inmate No. 525-249, London Correctional Institution,
P.O. Box 69, London, Ohio 43140
      Defendant-Appellant-Pro Se

                                            .............




WELBAUM, P.J.
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      {¶ 1} Defendant-appellant, Christopher A. DeVaughns, appeals pro se from the

judgment of the Montgomery County Court of Common Pleas overruling his Crim.R. 33

motion for new trial. For the reasons outlined below, the judgment of the trial court will

be affirmed.



                          Facts and Course of Proceedings

      {¶ 2} In 2006, DeVaughns was tried before a jury and found guilty of felonious

assault in violation of R.C. 2903.11(A)(1) and kidnapping in violation of R.C.

2905.01(A)(3). The charges stemmed from allegations that DeVaughns had beaten the

mother of his child, Lynelle Moore, causing her life-threatening injuries, and confined

Moore against her will.   After the jury rendered its verdict, the trial court sentenced

DeVaughns to eight years in prison for the felonious assault and ten years in prison for

the kidnapping. The trial court ordered the sentences to be served consecutively to each

other and consecutively to a sentence imposed in another case.

      {¶ 3} DeVaughns subsequently appealed from his conviction and sentence. On

appeal, we rejected the manifest weight and allied offense claims raised by DeVaughns

in his appeal, but held that the trial court erred in failing to afford DeVaughns an

opportunity to speak on his own behalf at sentencing. Accordingly, we reversed the trial

court’s sentencing decision and remanded the matter for resentencing.            State v.

DeVaughns, 2d Dist. Montgomery No. 21654, 2007-Ohio-3455 (“DeVaughns I”).

      {¶ 4} On remand, the trial court gave DeVaughns the opportunity to address the

court personally at his resentencing hearing. Following DeVaughns’ remarks, the trial
                                                                                        -3-


court imposed the same sentence that it had imposed at the original sentencing hearing.

DeVaughns thereafter appealed from the sentence imposed by the trial court on remand,

which we affirmed. State v. DeVaughns, 2d Dist. Montgomery No. 22349, 2008-Ohio-

4010 (“DeVaughns II”).

      {¶ 5} In August 2009, DeVaughns filed a pro se motion for new trial based on newly

discovered evidence. The alleged new evidence consisted of attendance sheets from a

daycare center and a letter from a daycare employee, both of which purportedly

demonstrated that DeVaughns had picked up his daughter during the time it was alleged

that he kidnapped Moore. The trial court denied DeVaughns’ motions without a hearing.

On appeal, we held that the record “clearly reveals that this evidence was not new in

relation to the issues of fact that were tried. The substance of [the employee’s] letter

was admitted into evidence at Defendant’s trial as a stipulation.”        Accordingly, we

affirmed the denial of DeVaughns’ motion for a new trial. State v. DeVaughns, 2d Dist.

Montgomery No. 23720, 2011-Ohio-125 (“DeVaughns III”).

      {¶ 6} In 2011, DeVaughns filed several other pro se motions, including, but not

limited to, a “Motion for Correction [of] Trial Transcript” and a “Motion for Unavoidably

Prevented Crim.R. 33(B),” which the trial court construed as a Crim.R. 33 motion for new

trial. The trial court overruled both motions and DeVaughns separately appealed those

decisions. We dismissed DeVaughns’ appeal from the trial court’s decision overruling

the motion to correct the trial transcript on grounds that the issue of an incomplete trial

transcript could have been raised in the pending appeal from his Crim.R. 33 motion for

new trial. Decision and Final Judgment Entry (Sept. 12, 2011), 2d Dist. Montgomery

App. Case No. 24700.
                                                                                       -4-


      {¶ 7} In the appeal from the trial court’s decision overruling DeVaughns’ Crim.R.

33 motion for new trial, we found that all but one of DeVaughns’ assignments of error

were either barred by res judicata or were not properly before this court. The single

assignment of error we reviewed claimed that DeVaughns’ trial counsel was ineffective in

failing to present exculpatory evidence related to his purported alibi. We, however,

affirmed the trial court’s decision overruling DeVaughns’ motion for new trial on grounds

that the motion was untimely and that DeVaughns was not unavoidably prevented from

discovering the evidence on which his ineffective assistance claim was based. State v.

DeVaughns, 2d Dist. Montgomery No. 24631, 2012-Ohio-5791 (“DeVaughns IV”).

      {¶ 8} In April 2015, DeVaughns filed a petition for post-conviction relief pursuant

to R.C. 2953.21 and R.C. 2953.23, along with several other motions to supplement his

petition. The petition and motions included claims of ineffective assistance of counsel

and prosecutorial misconduct. Specifically, DeVaughns argued that his trial counsel

failed to properly object to the admissibility of certain blood evidence and that the

prosecutor offered into evidence and discussed during closing argument inadmissible

blood evidence.    The trial court denied DeVaughns’ petition on grounds that it was

untimely and that his allegations “do not address complaints outside the record that could

not be attacked on direct appeal.” On June 30, 2015, DeVaughns appealed that ruling,

but then voluntarily dismissed the appeal. Decision and Final Judgment Entry (Feb. 19,

2016), 2d Dist. Montgomery App. Case No. 26745.

      {¶ 9} On February 18, 2016, DeVaughns filed another petition for post-conviction

relief, wherein he asked the trial court to set aside his conviction.        Specifically,

DeVaughns argued that there was evidence of blood on various items in his apartment,
                                                                                          -5-


but the record did not identify the identity of the person whose blood was found, as no

DNA testing had been requested on the blood samples. DeVaughns further indicated

that certain testimony about the blood was “indiscernible” in the trial transcript and that

the “identity and/or identities of the State’s (DNA) evidence used to convict [him]” was

outside the trial court’s record and unavailable. DeVaughns also claimed that the failure

to identify the source of the blood deprived him of his right to confront witnesses, that his

trial counsel was ineffective in failing to challenge the blood evidence, and that these

circumstances warranted a new trial.

       {¶ 10} Approximately three weeks later, on March 7, 2016, DeVaughns filed a

“motion” under R.C. 2953.21 and R.C. 2953.23, arguing that the State had failed to

respond to his petition for post-conviction relief, and therefore, had conceded the facts in

his petition. In response, the State filed an opposing memorandum arguing that the

claims in DeVaughns’ petition were untimely and barred by the doctrine of res judicata.

The trial court agreed with the State. Therefore, on March 30, 2016, the trial court issued

a decision overruling DeVaughns’ petition for post-conviction relief1 on the basis of res

judicata. Not satisfied with the trial court’s decision, DeVaughns once again appealed to

this court.

       {¶ 11} On appeal, we found that DeVaughns’ petition was successive and

untimely, and that he failed to establish that he was unavoidably prevented from

discovering the facts upon which his claim was based.          Specifically, we found that


1 Although the trial court’s judgment entry references DeVaughns’ motion filed on March
7, 2016, and not the petition for post-conviction relief filed on February 18, 2016, based
on the substance of the trial court’s judgment, it is apparent that the court ruled on the
petition for post-conviction relief, regardless of the stated date. See State v. DeVaughns,
2017-Ohio-475, 84 N.E.3d 332, ¶ 11, fn. 1 (2d Dist.).
                                                                                         -6-


DeVaughns knew, from being present at his trial, that the blood evidence was offered at

trial and that it was not DNA tested. We also found that DeVaughns was aware of his

trial counsel’s statements to the trial court concerning the admissibility of the blood

evidence, and therefore, he could have raised his counsel’s alleged ineffectiveness in his

direct appeal.   Accordingly, we affirmed the judgment of the trial court overruling

DeVaughns’ petition for post-conviction relief. State v. DeVaughns, 2017-Ohio-475, 84

N.E.3d 332 (2d Dist.) (“DeVaughns V”).2

       {¶ 12} Two days before our decision was released in DeVaughns V, on February

8, 2017, DeVaughns filed yet another pro se Crim.R. 33 motion for new trial. The motion

raised the same argument that was raised in his prior petition for post-conviction relief;

namely, that the State’s purported failure to identify the source of the blood evidence used

at trial deprived him of his right to confront his accusers. The State filed an opposing

memorandum in response arguing that DeVaughns’ claim was barred by res judicata.

DeVaughns thereafter filed a reply to the State’s memorandum, followed by two additional

pro se motions filed on June 21, 2017, and July 5, 2017, which requested the trial court

to allow him to depose the source of the blood evidence and to “exculpate testimony”

regarding the blood evidence.

       {¶ 13} On August 15, 2017, the trial court issued a decision overruling all three of

DeVaughns’ pending motions. In doing so, the trial court analyzed the motions under

Crim.R. 33 and found that they were untimely and not filed on the basis of newly

discovered evidence. The trial court also determined that the motions were barred by


2In that decision we also affirmed the trial court’s judgment overruling DeVaughns’
App.R.9(C) motion for a statement of the evidence that was filed on July 13, 2015.
DeVaughns V, 2017-Ohio-475, 84 N.E.3d 332 at ¶ 13-20.
                                                                                           -7-


the doctrine of res judicata. DeVaughns now appeals from the trial court’s decision,

raising two assignments of error for review.



                                First Assignment of Error

       {¶ 14} Although difficult to discern, we interpret DeVaughns’ First Assignment of

Error as generally challenging the trial court’s decision to overrule his motion for new trial

pursuant to Crim.R. 33. After a thorough review of the record, we find no error in the trial

court’s decision.

       {¶ 15} “A trial court’s decision on a Crim.R. 33 motion for a new trial will not be

reversed absent an abuse of discretion.” State v. Gillispie, 2d Dist. Montgomery No.

24456, 2012-Ohio-1656, ¶ 31, citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54

(1990), paragraph one of the syllabus; State v. Matthews, 81 Ohio St.3d 375, 378, 691

N.E.2d 1041 (1998). “ ‘Abuse of discretion’ has been defined as an attitude that is

unreasonable, arbitrary or unconscionable.” (Citation omitted.) AAAA Enterprises, Inc.

v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990).

       {¶ 16} Pursuant to Crim.R. 33(A):

       A new trial may be granted on motion of the defendant for any of the

       following causes affecting materially his substantial rights:

       (1) Irregularity in the proceedings, or in any order or ruling of the court, or

       abuse of discretion by the court, because of which the defendant was

       prevented from having a fair trial;

       (2) Misconduct of the jury, prosecuting attorney, or the witnesses for the
                                                                                           -8-


       state;

       (3) Accident or surprise which ordinary prudence could not have guarded

       against;

       (4) That the verdict is not sustained by sufficient evidence or is contrary to

       law. * * *;

       (5) Error of law occurring at the trial;

       (6) When new evidence material to the defense is discovered which the

       defendant could not with reasonable diligence have discovered and

       produced at the trial. * * *

       {¶ 17} Except for motions based on newly discovered evidence under Crim.R.

33(A)(6), a motion for new trial “shall be filed within fourteen days after the verdict was

rendered * * * unless it is made to appear by clear and convincing proof that the defendant

was unavoidably prevented from filing his motion for a new trial * * * [.]” Crim.R. 33(B).

In contrast, a motion for new trial based on newly discovered evidence “shall be filed

within one hundred twenty days after the day upon which the verdict was rendered * *

* [.]” Id.

       {¶ 18} In order to file a motion for new trial after the expiration of the time periods

specified in Crim.R. 33(B), a defendant must first seek leave of the trial court to file a

delayed motion. State v. Lanier, 2d Dist. Clark No. 2009 CA 84, 2010-Ohio-2921, ¶ 15,

citing State v. Warwick, 2d Dist. Champaign No. 01CA33, 2002 WL 1585663, *2 (July 19,

2002); State v. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 16 (2d

Dist.). “To obtain leave, defendant must demonstrate by clear and convincing evidence

that he or she was unavoidably prevented from timely filing the motion for a new trial or
                                                                                             -9-


discovering the new evidence within the time period provided by Crim.R. 33(B).”

(Citations omitted.) Warwick at *2. “A defendant is entitled to a hearing on a motion for

leave to seek a new trial if he submits documents that on their face support his claim of

being unavoidably prevented from meeting Crim.R. 33’s time requirement.” State v.

Hiler, 2d Dist. Montgomery No. 27364, 2017-Ohio-7636, ¶ 12, citing Lanier at ¶ 16.

       {¶ 19} “ ‘[A] party is unavoidably prevented from filing a motion for new trial if the

party had no knowledge of the existence of the ground supporting the motion for new trial

and could not have learned of the existence of that ground within the time prescribed for

filing the motion for new trial in the exercise of reasonable diligence.’ ” Parker at ¶ 16,

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

“[A] defendant fails to demonstrate that he or she was unavoidably prevented from

discovering new evidence when he would have discovered that information earlier had

he or she exercised due diligence and some effort.” State v. Lenoir, 2d Dist. Montgomery

No. 26846, 2016-Ohio-4981, ¶ 24, citing State v. Metcalf, 2d Dist. Montgomery No. 26101,

2015-Ohio-3507, ¶ 11, citing Warwick.

       {¶ 20} In this case, DeVaughns filed his motion for new trial pursuant to Crim.R.

33(A)(1), (4), and (5). DeVaughns’ motion is therefore based on an irregularity in the

proceedings, insufficient evidence to support his conviction, and an error of law at trial.

Since DeVaughns’ motion is not based on newly discovered evidence, he was required

to file his motion within fourteen days after his verdict or to request leave to file his motion

out of time by providing clear and convincing proof that he was unavoidably prevented

from timely filing his motion. The record is clear that DeVaughns’ motion for new trial

was untimely, as he filed the motion over ten years after his verdict was rendered.
                                                                                            -10-


Accordingly, DeVaughns was obligated to provide the trial court with clear and convincing

proof that he was unavoidably prevented from filing his motion in a timely fashion.

DeVaughns did not do this. We further note that the record is devoid of any evidence

indicating that DeVaughns was unavoidably prevented from discovering the fact that the

blood evidence was not DNA tested, as he was aware of this fact at the time of trial.

Therefore, since DeVaughns never provided the trial court with a reason, let alone clear

and convincing proof that he had been unavoidably prevented from timely filing his

motion, the trial court did not abuse its discretion in denying his motion for new trial.

       {¶ 21} The trial court also properly concluded that the blood evidence issue raised

in DeVaughns’ motion for new trial was barred by the doctrine of res judicata, as he could

have raised that issue in his direct appeal and raised similar issues in DeVaughns IV and

DeVaughns V. See State v. Videen, 2d Dist. Montgomery No. 27479, 2017-Ohio-8608,

¶ 20 (finding res judicata barred appellant from raising issues in his motion for new trial

that could have been raised in his direct appeal), citing State v. Russell, 10th Dist. Franklin

No. 04AP-1149, 2005-Ohio-4063, ¶ 6-7 and State v. Butler, 2d Dist. Clark No. 2717, 1991

WL 116659, *1 (June 26, 1991).

       {¶ 22} For the foregoing reasons, DeVaughns’ First Assignment of Error is

overruled.



                              Second Assignment of Error

       {¶ 23} We interpret DeVaughns’ Second Assignment of Error as challenging this

court’s decision in DeVaughns III, as DeVaughns merely quotes the following portion of

that decision:
                                                                                         -11-


       [T]he mere fact that at some point during Lynelle Moore’s confinement

       Defendant briefly left his apartment to pickup his daughter does not

       exonerate Defendant and demonstrate that Defendant did not restrain

       Moore’s liberty at other times during this period. Nor does the fact that

       Defendant briefly left the apartment necessarily establish that Moore had

       opportunities to escape confinement, given the physical injuries Defendant

       inflicted on her and his threat to kill her if she tried to escape. Defendant's

       first, second, third and sixth assignments of error are overruled.

DeVaughns III, 2d Dist. Montgomery No. 23720, 2011-Ohio-125 at ¶ 25-26.

       {¶ 24} DeVaughns’ challenge to this court’s decision in DeVaughns III is not

properly before this court. In addressing a similar issue raised by DeVaughns in one of

his prior appeals, we noted that “DeVaughns’ recourse was to seek reconsideration in

this Court, pursuant to App.R. 26(A), or leave for our decision to be considered by the

Ohio Supreme Court, which were not done.” DeVaughns IV, 2d Dist. Montgomery No.

2012-Ohio-5791 at ¶ 9.        The same is true here.        This court’s prior decision in

DeVaughns III remains the law of the case, thus rendering any challenge DeVaughns

may have to that decision without merit.

       {¶ 25} DeVaughns’ Second Assignment of Error is overruled.



                                           Conclusion

       {¶ 26} Having overruled both assignments of error raised by DeVaughns, the

judgment of the trial court is affirmed.
                                                -12-




                                .............



DONOVAN, J. and HALL, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Michael J. Scarpelli
Christopher A. Devaughns
Hon. Gregory F. Singer
