[Cite as State v. Walter, 2018-Ohio-4415.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106984



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                        TERRANCE J. WALTER

                                                        DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                       Criminal Appeal from the
                                Cuyahoga County Court of Common Pleas
                                      Case No. CR-06-485250-A

        BEFORE: Boyle, J., Kilbane, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: November 1, 2018
FOR APPELLANT

Terrance J. Walter, pro se
Inmate No. A531346
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113


MARY J. BOYLE, J.:

          {¶1}   Defendant-appellant, Terrance Walter, appeals the trial court’s denial of his

motion for leave to file a motion for new trial.       He raises four assignments of error for our

review:

          1. The trial court abused its discretion and committed error when it failed to hold
          a hearing to determine whether there is clear and convincing evidence of
          unavoidable delay.

          2. The trial court abused its discretion when it vacated its decision granting the
          motion for leave based on the State’ s opposition brief where it was untimely and
          outside the time frame given by the trial court to file a brief in opposition to the
          motion for leave, and the trial court acknowledged no opposition motion was
          file[d] in its decision granting the motion for leave.

          3. The trial court abused its discretion by denying the motion for leave where the
          defendant-appellant provided clear and convincing evidence that he was
          unavoidably delayed from discovering the grounds of the conflict.

          4. Trial counsel * * * labored under a conflict of interest when he represented the
          defendant-appellant Walter due to * * * conduct representing co-defendant and
       cooperating witness Antonio Campbell in a prior related case which led to the
       instant murder charges.

       {¶2}    Finding no merit to his appeal, we affirm.

I. Procedural History and Factual Background

       {¶3}    Walter and his codefendant Antonio Campbell were indicted in 2006 in

connection with the murder of Samuel Sims, Jr. The four-count indictment charged the men

with one count of aggravated murder, two counts of aggravated burglary, and one count of

felonious assault. All the counts contained three- and six-year firearm specifications.

       {¶4}    Campbell pleaded guilty and testified against Walter at Walter’s jury trial.    The

jury found Walter guilty of all counts and specifications. The trial court sentenced Walter to

life imprisonment without the possibility of parole for 20 years on the aggravated murder charge,

plus six years for the firearm specifications to be served consecutively; a concurrent term of five

years for the aggravated burglary counts; and a consecutive term of eight years for the felonious

assault count. Thus, Walter was sentenced to an aggregate 34 years to life in prison.

       {¶5}    This court upheld Walter’s aggravated murder and felonious assault convictions

on direct appeal, but we vacated Walter’s aggravated burglary convictions. State v. Walter, 8th

Dist. Cuyahoga No. 90196, 2008-Ohio-3457 (see that opinion for a review of the detailed facts of

the case). Upon remand, the trial court vacated the convictions and sentences for the two

aggravated burglary counts. Walter appealed our decision to the Ohio Supreme Court, which

declined to accept his appeal. State v. Walter, 120 Ohio St.3d 1454, 2008-Ohio-6813, 898

N.E.2d 968.

       {¶6}    Walter later applied to reopen his appeal, arguing that his appellate counsel was

ineffective, which we denied. State v. Walter, 8th Dist. Cuyahoga No. 90196, 2009-Ohio-954.
He also filed a writ of procedendo, asking this court to order the trial court to “render a ruling

with regard to a motion to remove court costs/fines,” which we declined to issue. Walter v.

State, 8th Dist. Cuyahoga No. 100091, 2013-Ohio-4198.

       {¶7}    Further, in 2009, Walter filed a motion for leave to file a motion for new trial,

arguing that his codefendant was the shooter. Walter attached an affidavit from the codefendant

recanting his trial testimony that Walter was the shooter and stating that he was the shooter.

The trial court granted Walter leave to file the motion and set the matter for an evidentiary

hearing.   After the hearing, which was held in October 2010, the trial court denied his motion.

Walter appealed this denial, but we dismissed his appeal for failure to file the record. See State

v. Walter, 8th Dist. Cuyahoga No. 96136.

       {¶8}    In December 2010, Walter filed an “order to cease and desist,” asking the court to

order the court reporter who transcribed the hearing on his motion for new trial to provide him

with a copy of the transcript at no cost. The trial court denied this motion, and Walter appealed.

 This court dismissed the appeal for failure to file a record. See State v. Walter, 8th Dist.

Cuyahoga No. 96400.

       {¶9}    In 2011, Walter filed a motion for relief from judgment under Civ.R. 60(B),

which the trial court denied.

       {¶10} In 2013, Walter filed a petition for postconviction relief, which the trial court

denied. He claimed that “had he been afforded effective assistance of counsel during plea

negotiations, he would have accepted a plea offer from the state that included a recommendation

for a less stringent sentence than he received.” The state opposed Walter’s motion, asserting

that the transcript established that Walter refused to engage in plea negotiations.   The trial court
denied his petition, and this court affirmed the trial court’s denial. State v. Walter, 8th Dist.

Cuyahoga No. 99894, 2014-Ohio-393.

        {¶11} Walter subsequently filed a request to inspect the jury’s findings and verdict forms

and motion to issue a final appealable order. The trial court denied his request to inspect the

jury findings and verdict forms but granted his motion for a final appealable order pursuant to

State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. The trial court issued a

nunc pro tunc judgment entry in line with Baker.     Walter appealed the trial court’s granting his

motion for a final appealable order, arguing that the trial court should have sentenced him de

novo rather than just issue a nunc pro tunc entry in line with Baker. He also argued that he was

entitled to a new trial due to “prejudicial spillover of evidence” into his trial from the burglary

convictions (that we vacated in his direct appeal). This court overruled his assigned errors and

affirmed the judgment of the trial court. State v. Walter, 8th Dist. Cuyahoga No. 104443,

2017-Ohio-466.

        {¶12} In November 2017, Walter moved for leave to file a motion for new trial, the

motion that is at issue in the present appeal.    He filed a motion for new trial that same day,

which the trial court ordered to be held in abeyance until it decided his motion for leave.

        {¶13} The court issued an order giving the state until December 8, 2017, to respond to

Walter’s motion for leave.

        {¶14} On January 5, 2018, the state requested leave to file an opposition brief to Walter’s

motion for leave, stating that according to its electronic database, it had not received Walter’s

motion (although it had apparently received the court’s order giving it until December 8 to

respond to Walter’s motion for new trial). The state filed its brief in opposition on January 8,

2018.
        {¶15} The trial court initially granted Walter leave to file a motion for new trial, but then

issued a judgment on March 2, 2018, explaining that its initial order was improvidently granted.

The court then vacated its earlier ruling and denied Walter’s motion.      It is from this judgment

that Walter now appeals.

II. Motion for Leave Under Crim.R. 33(B)

        {¶16} In his second and third assignments of error, Walter argues that the trial court

abused its discretion when it denied his motion for leave. In his first assignment of error, he

maintains that the trial court abused its discretion when it denied his motion to leave without an

evidentiary hearing.     We will address these assignments of error together as they are

interrelated.

        {¶17} We review a Crim.R. 33(B) motion under an abuse of discretion standard.           State

v. Pinkerman, 88 Ohio App.3d 158, 160, 623 N.E.2d 643 (4th Dist.1993); State v. Shakoor, 7th

Dist. Mahoning No. 10 MA 64, 2010-Ohio-6386, ¶ 17.              The same is true regarding a trial

court’s decision to hold an evidentiary hearing on the motion. State v. Zielinski, 12th Dist.

Warren No. CA2014-05-069, 2014-Ohio-5318, ¶ 16. Therefore, unless we find that the trial

court’s attitude was unreasonable, arbitrary, or unconscionable, we must affirm the court’s

decision. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

        {¶18} Under Crim.R. 33(A), a defendant may file a motion for new trial for any of the

following causes materially affecting 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 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. If
       the evidence shows the defendant is not guilty of the degree of crime for which he
       was convicted, but guilty of a lesser degree thereof, or of a lesser crime included
       therein, the court may modify the verdict or finding accordingly, without granting
       or ordering a new trial, and shall pass sentence on such verdict or finding as
       modified;

       (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.
       When a motion for a new trial is made upon the ground of newly discovered
       evidence, the defendant must produce at the hearing on the motion, in support
       thereof, the affidavits of the witnesses by whom such evidence is expected to be
       given, and if time is required by the defendant to procure such affidavits, the court
       may postpone the hearing of the motion for such length of time as is reasonable
       under all the circumstances of the case. The prosecuting attorney may produce
       affidavits or other evidence to impeach the affidavits of such witnesses.

       {¶19} Walter based his motion on Crim.R. 33(A)(1) and (5). When a defendant bases

his or her motion on these grounds, Crim.R. 33(B) requires the defendant to file the motion for

new trial within 14 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” within that time.   Once a court determines that a defendant was unavoidably prevented

from filing such motion within the time provided in Crim.R. 33(B), then a defendant has seven

days to file his or her motion for new trial.

       {¶20} Thus, Walter had to establish by “clear and convincing proof” that he was

unavoidably prevented from timely filing his motion.         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.” State v. Rodriguez-Baron, 7th Dist. Mahoning No.

12-MA-44, 2012-Ohio-5360, ¶ 11, citing State v. Walden, 19 Ohio App.3d 141, 483 N.E.2d 859

(10th Dist.1984).
       {¶21} “Clear 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. Covender, 9th Dist. Lorain No. 11CA010093, 2012-Ohio-6105, ¶ 14;

State v. Mathis, 134 Ohio App.3d 77, 79, 730 N.E.2d 410 (1st Dist.1999). “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.”                 (Emphasis added.)

Rodriguez-Baron at ¶ 11, citing State v. Fortson, 8th Dist. Cuyahoga No. 82545,

2003-Ohio-5387.

       {¶22} According to Walter’s affidavit attached to his motion for leave, he wrote letters to

the Cuyahoga County Clerk of Courts in 2008, 2009, and 2010, requesting any “journal entries of

Antonio Campbell.” The clerk of courts never responded to his requests. He also asked the

attorney who represented him in his previous motion for new trial to get them, but that attorney

told him that he only represented him in a limited manner. In October 2013, however, Walter’s

uncle gave him two Cuyahoga County Common Pleas Court journal entries purportedly showing

that Walter’s trial counsel had previously represented Walter’s codefendant, Antonio Campbell,

in two separate cases in 2004. Although Walter obtained the entries in October 2013, he waited

over four years to file his motion for leave to file a motion for new trial (in November 2017).

Walter does set forth why he was “unavoidably prevented” from obtaining the documents in

2008 to 2010, but he offers no explanation as to why he waited over four years to file his motion

after obtaining the documents. Thus, Walter has not clearly and convincingly proven that he was

unavoidably prevented from filing his motion in a timely manner.

       {¶23} In State v. Stansberry, 8th Dist. Cuyahoga No. 71004, 1997 Ohio App. LEXIS

4561 (Oct. 9, 1997), this court explained:
                Without some standard of reasonableness in filing a motion for leave to
        file a motion for new trial, a defendant could wait before filing his motion in the
        hope that witnesses would be unavailable or no longer remember the events
        clearly, if at all, or that evidence might disappear. The burden to the state to
        retry the case might be too great with the passage of time. A defendant may not
        bide his time in the hope of receiving a new trial at which most of the evidence
        against him is no longer available.

                A trial court must first determine if a defendant has met his burden of
        establishing by clear and convincing proof that he was unavoidably prevented
        from filing his motion for a new trial within the statutory time limits. If that
        burden has been met but 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. That determination is subject to a review by an abuse of
        discretion standard.

Id. at 9.

        {¶24} In Stansberry, this court affirmed the trial court’s ruling denying the defendant’s

motion for leave because, although most of the evidence upon which the defendant relied was

available to him either in 1984 or by 1993, his motion was not filed until 1996. Id. at 8.

Similarly, in State v. Nicholson, 8th Dist. Cuyahoga    No. 70916, 1997 Ohio App. LEXIS 1751

(May 1, 1997), this court reversed the grant of a new trial due, in part, to the delay of the

defendant in filing his motion four years after discovering his evidence. Id. at 12; see also State

v. Newell, 8th Dist. Cuyahoga No. 84525, 2004-Ohio-6917, ¶ 20 (affirmed the trial court’s denial

of motion for leave because psychiatric reports at issue were available to the defendant in 1992

and 1998, but he did not file his motion for leave until 2003 and offered no reason for the delay).

        {¶25} Walter also makes several arguments regarding the trial court’s first order that

initially granted his motion for leave but then later vacating that order because the trial court

found that it had improvidently granted it. Walter further claims that the trial court should not

have permitted the state to respond beyond the December 8, 2017 deadline given by the court.

Although the procedural timeline of Walter’s motion for leave is somewhat irregular (both
parties seemed to have issues receiving copies of the pleadings and orders), the trial court did not

violate Walter’s constitutional rights in any way.    Moreover, it is well settled that trial courts

have broad discretion over the control of their dockets. See State v. Atkins, 6th Dist. Sandusky

No. S-95-005, 1995 Ohio App. LEXIS 5276, 2 (Dec. 1, 1995) (the reasons for continuances fall

squarely within the discretion and authority of the trial court to manage and control its own

docket). Accordingly, the trial court did not abuse its discretion when it accepted the state’s late

filing of its opposition brief.

        {¶26} Regarding the trial court’s denial of Walter’s motion for leave without holding an

evidentiary hearing (Walter’s first assignment of error), we find no abuse of discretion. If a trial

court can determine on the face of the motion that the movant has not demonstrated that he or she

was unavoidably prevented from discovering the evidence, it is within the trial court’s discretion

to deny the motion without holding an evidentiary hearing. See State v. Sutton, 8th Dist.

Cuyahoga No. 103931, 2016-Ohio-7612, ¶ 25; State v. McConnell, 170 Ohio App.3d 800,

2007-Ohio-1181, 869 N.E.2d 77, ¶19 (2d Dist.).

        {¶27} Here, Walter did not set forth any reason in his motion for leave explaining why he

waited over four years to file his motion after obtaining the pertinent documents. Thus, the trial

court could determine from the face of Walter’s motion for leave that he did not clearly and

convincingly prove that he was unavoidably prevented from timely filing his motion.             We

therefore find that the trial court did not abuse its discretion when it denied Walter’s motion

without holding an evidentiary hearing.

        {¶28} Accordingly, Walter’s first, second, and third assignments of error are overruled.
       {¶29} Walter’s fourth assignment of error addresses the merits of his motion for new

trial. Because we are upholding the trial court’s judgment denying Walter’s motion for leave to

file a motion for new trial, we summarily overrule Walter’s fourth assignment of error.

       {¶30} Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out 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.




MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
