[Cite as State v. Dawson, 2011-Ohio-2773.]




                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


STATE OF OHIO                                )    CASE NO. 09 MA 209
                                             )
        PLAINTIFF-APPELLEE                   )
                                             )
VS.                                          )    OPINION
                                             )
WILLIAM T. DAWSON, JR.                       )
                                             )
        DEFENDANT-APPELLANT                  )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from the Court of
                                                  Common Pleas of Mahoning County,
                                                  Ohio
                                                  Case No. 87 CR 458

JUDGMENT:                                         Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                           Atty. Paul J. Gains
                                                  Mahoning County Prosecutor
                                                  Atty. Ralph M. Rivera
                                                  Assistant Prosecuting Attorney
                                                  21 West Boardman Street, 6th Floor
                                                  Youngstown, Ohio 44503

For Defendant-Appellant:                          William T. Dawson, Jr., Pro se
                                                  #200-473
                                                  Belmont Correctional Institution
                                                  P.O. Box 540
                                                  St. Clairsville, Ohio 43950


JUDGES:
                                                                                     -2-

Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro

Dated: June 2, 2011


WAITE, P.J.

       {1}     Appellant William T. Dawson, Jr., is appealing the judgment of the

Mahoning County Court of Common Pleas denying him leave to file a motion for new

trial. Appellant was convicted of murdering Youngstown Police Officer Paul Durkin in

1987, and he was sentenced to 18 years to life in prison. The jury trial conviction and

sentence were upheld on appeal to this Court. State v. Dawson (June 29, 1990), 7th

Dist. No. 87 C.A. 194.

       {2}     On October 12, 2007, Appellant filed a motion seeking leave to file a

motion for new trial.      In this motion, Appellant also asks that counsel and an

investigator be appointed, and for exhumation. Appellant wants to exhume the body

of his victim hoping he will find evidence to support a theory of self-defense. The

state responded to his motion.           On November 18, 2009, the trial court filed a

judgment entry overruling the motion. This timely appeal followed. Appellant has

filed his briefs to this Court pro se.

       {3}     According to Crim.R. 33, a motion for new trial must be filed within 14

days or 120 days of the verdict, depending on the reason for the request. If such

motion is filed late, the defendant must seek leave to file and must first prove that he

was unavoidably prevented from filing his motion for new trial. Appellant did not

allege or prove that he was unavoidably prevented from filing his motion. For this
                                                                                     -3-

reason, alone, the trial court was correct in denying the motion for leave.

Additionally, Appellant failed to provide any proof in support of his motion. Crim.R.

33(C) requires the defendant to support his motion with proof in the form of affidavits.

Since Appellant supplied only his own conjecture rather than proof, there is a second

reason the motion was properly denied. Hence, the judgment of the trial court is

affirmed.

                             ASSIGNMENT OF ERROR

      {4}     “THE TRIAL COURT COMMITTED SOME KIND OF ERROR [PLAIN

OR REVERSIBLE AND/OR SOME OTHER] AND/OR ABUSED ITS’ DISCRETION,

WHEN IT OVERRULED APPELLANTS’ MOTION FOR LEAVE TO FILE A MOTION

FOR NEW TRIAL AND OTHER REQUESTS’, WITHOUT HAVING RULED UPON

THE MOTION TO EXHUME, IN VIOLATION OF HIS RIGHT TO NOT BE DEPRIVED

OF   HIS     LIBERTY,   WITHOUT      DUE     PROCESS       OF   LAW,    UNDER      THE

FOURTEENTH AMENDMENT, TO THE UNITED STATES CONSTITUTION, AND

THROUGH THE SAME, AND ARTICLE ONE, SECTION SIXTEEN, OF THE OHIO

CONSTITUTION. [sic]”

      {5}     Appellant argues that he submitted a 160-page memorandum to the

trial court explaining why he should not have been convicted of murder, and that this

should have been sufficient for the trial court to grant him leave to file a motion for

new trial.   Appellant admitted in this memorandum that he owned a 22-caliber

handgun and shot Officer Durkin with it, but he alleges that the shooting occurred in

self-defense during an altercation outside of Officer Durkin’s police cruiser.      The
                                                                                       -4-

evidence submitted at his murder trial indicated that Durkin was shot while seated in

his cruiser.   The theory on which Appellant bases his new trial request is that

practically everyone involved in the original trial conspired to suppress facts that

would have shown that Officer Durkin was shot in his left arm in such a way that the

shooting could not have occurred while he was seated in the police cruiser.

According to Appellant, if Officer Durkin was shot while outside the cruiser, then at

least the possibility exists that he shot the officer in self-defense. Thus, Appellant

argues that Officer Durkin’s body should be exhumed to establish that the state

improperly withheld or suppressed exculpatory evidence (supporting a theory of self-

defense) in violation of Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215. Appellant believes that under Brady, he should have told the trial court

that the evidence he wanted to rely on was materially exculpatory rather than only

potentially exculpatory. Appellant believes his motion was overruled due to this error,

and that his alleged error should have been excused because he is a pro se litigant.

       {6}     In Brady, the United States Supreme Court held, “the suppression by

the prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment, irrespective of

the good faith or bad faith of the prosecution.” Id. at 87. Evidence is “material” only if

there is a reasonable probability that the proceeding would have turned out differently

had the evidence been disclosed to the defense. United States v. Bagley (1985),

473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481. “A successful Brady claim

requires a three-part showing: (1) that the evidence in question be favorable; (2) that
                                                                                      -5-

the state suppressed the relevant evidence, either purposefully or inadvertently; (3)

and that the state's actions resulted in prejudice.” State v. Davis, 5th Dist. No. 2008-

CA-16, 2008-Ohio-6841, ¶53, citing Strickler v. Greene (1999), 527 U.S. 263, 281-

282, 119 S.Ct. 1936, 144 L.Ed.2d 286. The defendant must prove that the Brady

violation rises to the level of denial of due process. State v. Jackson (1991), 57 Ohio

St.3d 29, 33, 565 N.E.2d 549.

       {7}    In Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 333, 102

L.Ed.2d 2, the United States Supreme Court clarified the Brady ruling by holding that

“[t]he possibility that [evidentiary material] could have exculpated [the defendant] if

preserved or tested is not enough to satisfy the standard of constitutional materiality.”

Id. at 56. “A clear distinction is drawn by Youngblood between materially exculpatory

evidence and potentially useful evidence. If the evidence in question is not materially

exculpatory, but only potentially useful, the defendant must show bad faith on the

part of the state in order to demonstrate a due process violation.” State v. Geeslin,

116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, ¶10.

       {8}    Appellant now argues on appeal that the evidence he hopes to find is

materially exculpatory, but he acknowledges that he did not actually make this

argument to the trial court. This, alone, is reason enough to affirm the trial court’s

decision, because arguments that should have been presented to the trial court will

not be considered for the first time on appeal. State v. Garrett, 7th Dist. No. 06BE67,

2007-Ohio-7212, ¶8.      Appellant argues that he should be given some leeway

because he is not an attorney and did not know the law well enough to make a
                                                                                         -6-

proper argument to the trial court. This is not a persuasive argument because “a

defendant's knowledge of the law is not part of an analysis under Crim.R. 33(B)”.

State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶25.

       {9}     Appellee, in response, argues that in any event, Appellant’s motion for

a new trial was untimely pursuant to Crim.R. 33(B).            Due to this untimeliness,

Appellant was required to prove by clear and convincing evidence that he was

unavoidably prevented from filing his motion for new trial as a threshold matter.

Appellee contends that because Appellant has failed to assert, address or prove that

he was unavoidably prevented from filing a timely motion for new trial, the motion for

leave was properly dismissed. Appellee also argues that Appellant has failed to

establish that any evidence, whether materially exculpatory or not, was withheld from

the defense. Appellee submits that Appellant only speculates about the evidence

and his own theory of what it might possibly show rather than provide some proof that

any evidence was suppressed.

       {10}    Appellee’s arguments are correct.       Crim.R. 33 sets up a strict time

frame for filing motions for a new trial, and Appellant did not meet those deadlines.

Crim.R. 33 states, in pertinent part:

       {11}    “(A) Grounds. A new trial may be granted on motion of the defendant

for any of the following causes affecting materially his substantial rights:

       {12}    “(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;
                                                                                   -7-

       {13}   “(2) Misconduct of the jury, prosecuting attorney, or the witnesses for

the state;

       {14}   “* * *

       {15}   “(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.

       {16}   “(B) Motion for new trial; form, time. Application for a new trial shall

be made by motion which, except for the cause of newly discovered evidence, shall

be filed within fourteen days after the verdict was rendered, or the decision of the

court where a trial by jury has been waived, 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, in which case the motion shall be filed within seven days from the

order of the court finding that the defendant was unavoidably prevented from filing

such motion within the time provided herein.

       {17}   “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
                                                                                         -8-

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.

       {18}   “(C) Affidavits required. The causes enumerated in subsection (A)(2)

and (3) must be sustained by affidavit showing their truth, and may be controverted

by affidavit.” (Emphasis added.)

       {19}   Appellant has alleged two basic theories for seeking a new trial:

prosecutorial misconduct in suppressing exculpatory evidence; and newly discovered

evidence.     Motions for new trial based on prosecutorial misconduct or for

irregularities in the trial must be filed within 14 days of the verdict. Crim.R. 33(B). A

motion for new trial based on newly discovered evidence must be filed within 120

days of the verdict. Crim.R. 33(B). Appellant’s filings were submitted nearly 20 years

after the verdict was rendered.       Before a trial court can reach the merits of an

untimely motion for new trial, it must first grant leave to the defendant to file a motion

for new trial. Thus, the proper procedure for a defendant to follow after the Crim.R.

33 time limits have expired is to file a motion seeking leave to file a motion for new

trial, and then, only after the motion for leave is granted, to file the motion for new trial

within seven days.     State v. Walden (1984), 19 Ohio App.3d 141, 145-146, 483

N.E.2d 859.
                                                                                      -9-

       {20}   We review a Crim.R. 33(B) motion under an abuse of discretion

standard. State v. Pinkerman (1993), 88 Ohio App.3d 158, 160, 623 N.E.2d 643;

State v. Shakoor, 7th Dist. No. 10 MA 64, 2010-Ohio-6386, ¶17. Unless we find that

the trial court's attitude was unreasonable, arbitrary or unconscionable, we must

affirm the court's decision. State v. Adams (1980), 62 Ohio St.2d 151, 157, 404

N.E.2d 144.

       {21}   Appellant’s claims were filed well outside either the 14- or 120-day

period for filing a motion for new trial. Therefore, he was required to obtain leave of

court to file his motion for new trial. State v. Lordi, 149 Ohio App.3d 627, 2002-Ohio-

5517, 778 N.E.2d 605, ¶25. In order to obtain this leave, Appellant was required to

prove, by clear and convincing evidence, that he was unavoidably prevented from

filing a timely motion. Crim.R. 33(B). The only issue before the trial court in ruling on

a motion for leave to file is whether the defendant was unavoidably prevented in filing

a timely motion for new trial. Walden, supra, 19 Ohio App.3d at 145, 483 N.E.2d 859.

       {22}   “[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.”

Id. at 145-146.

       {23}   Appellant did not allege, much less try to support in an affidavit or any

other type of proof, that he was unavoidably detained from filing a motion for new

trial. Without such proof, the trial court could not have granted him leave to file a
                                                                                      -10-

delayed motion for a new trial. Appellant relies on mere conjecture rather than proof,

and mere conjecture does not constitute evidence in support of a motion for new trial

under Crim.R. 33, or a motion for leave to file such a motion. State v. Gillispie, 2d

Dist. Nos. 22877, 22912, 2009-Ohio-3640, ¶58; State v. Smith, 7th Dist. No. 06 BE

22, 2008-Ohio-1670, ¶69.

       {24}   Further, Appellant obviously has been aware of the grounds he now

alleges in support of his motion for a new trial. The main thrust of his argument is

that possibly he will be able to prove self-defense if the body of the victim is exhumed

and additional bullet wounds are found, bullet wounds that Appellant admits that he

inflicted in 1987. If Appellant did shoot the victim more times than were presented at

his murder trial, he certainly knew about the existence of, or at least the possibility of,

these additional wounds long before the expiration of his time for filing a motion for

new trial. In fact, Appellant would have known about the potential evidence from the

moment the crime was committed, because he readily states that he inflicted all the

gunshot wounds to Officer Durkin. As Appellant was clearly aware of the grounds for

obtaining a new trial but did nothing about it, he cannot be said to have been

unavoidably prevented from filing such motion.

       {25}   Even if Appellant had alleged unavoidable delay, he was still required to

file his motion for leave within a reasonable period of time after discovery of the

evidence that he believes warrants a new trial. State v. Elersic, 11th Dist. No. 2007-

L-104, 2008-Ohio-2121, ¶20; State v. Newell, 8th Dist. No. 84525, 2004-Ohio-6917,

¶16. It is not at all clear from Appellant’s filings when he came to the conclusion that
                                                                                    -11-

the victim’s body might contain additional evidence in his favor, but it certainly cannot

be considered reasonable to wait 20 years to bring this issue to the attention of the

court.

         {26}   Neither the trial court nor this Court may address the actual merits of

Appellant’s motion for new trial until first establishing that leave should be granted to

file his motion. Although Appellee attempts to also address the merits of the motion

for a new trial, no motion for new trial is properly filed. The only issue properly on

appeal is whether the trial court erred in overruling the motion for leave. Appellant

did not present any evidence in support of his motion for leave. More to the point, it

is clear from Appellant’s own argument that he was not unavoidably prevented from

filing a timely motion for new trial. Therefore, the trial court correctly overruled the

motion for leave. Appellant’s sole assignment of error is overruled and the judgment

of the trial court is affirmed.


Vukovich, J., concurs.

DeGenaro, J., concurs.
