[Cite as State v. Davis, 2013-Ohio-846.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 12CA010256
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
IAN R. DAVIS COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE Nos. 91CR040924
93CR043666
DECISION AND JOURNAL ENTRY
Dated: March 11, 2013
MOORE, Presiding Judge.
{¶1} Defendant-Appellant, Ian R. Davis (a.k.a. Benson Davis), appeals from the
judgment of the Lorain County Court of Common Pleas which denied his motion for leave to file
a delayed motion for a new trial. We affirm.
I.
{¶2} In 1994, a jury convicted Mr. Davis of aggravated murder and felonious assault
for his participation in the brutal killing of Marsha Blakely. Based upon his convictions, the trial
court sentenced Mr. Davis to life imprisonment. Mr. Davis directly appealed, and this Court
affirmed the trial court’s decision. See State v. Davis, 9th Dist. No. 94CA005989, 1996 WL
121998, *1 (Mar. 20, 1996). In 1998, Mr. Davis filed a delayed motion for a new trial pursuant
to Crim.R. 33(A)(2) and (6). The trial court denied his motion and this Court affirmed the trial
court’s decision because “[Mr.] Davis made no attempt to show the trial court why he was
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unavoidably prevented from discovering the evidence before January 20, 1995.” State v. Davis,
9th Dist. No. 98CA007062, 1999 WL 194473, *1 (Mar. 31, 1999).
{¶3} Approximately fourteen years later, Mr. Davis again moved the trial court for
leave to file a delayed motion for a new trial. He attached the following evidence in support of
his motion: (1) his own affidavit claiming innocence, (2) a copy of AT&T long distance
telephone records from New York State to Lorain, Ohio, dated June 27th to August 10th, without
any verifying information regarding the year these calls were made or the number from which
these calls were made, (3) a copy of an investigative report regarding inmate William Avery’s
statements about a corrections officer allegedly allowing one of Mr. Davis’ co-defendants to
threaten him in jail, and (4) the affidavit of William Avery, the State’s witness, recanting his
former testimony that he witnessed Marsha Blakely’s murder. The trial court denied Mr. Davis’
motion for leave to file a delayed motion for a new trial.
{¶4} Mr. Davis timely appealed, raising one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND VIOLATED [] [MR. DAVIS’] FIFTH,
SIXTH, AND FOURTEENTH AMENDMENT RIGHT[S] WHEN IT DENIED
[] [HIS] MOTION FOR LEAVE TO FILE DELAYED MOTION FOR NEW
TRIAL WITHOUT DETERMINING WHETHER [] [HE] WAS
UNAVOIDABLY PREVENTED FROM DISCOVERING THE EVIDENCE
WITHIN 120 DAYS OF THE JURY’S VERDICT AS MANDATED
PURSUANT TO CRIM.R. 33(B)[.]
{¶5} In his first assignment of error, Mr. Davis contends that the trial court erred in
denying his motion for leave to file a delayed motion for a new trial without first holding a
hearing to determine whether there was sufficient evidence to satisfy the unavoidable delay
standard. We disagree.
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{¶6} A trial court's decision to grant or deny a motion for leave to file a delayed motion
for a new trial will not be reversed on appeal absent an abuse of discretion. State v. Holmes, 9th
Dist. No. 05CA008711, 2006-Ohio-1310, ¶ 8, citing State v. Schiebel, 55 Ohio St.3d 71 (1990),
paragraph one of the syllabus. “‘Likewise, the decision on whether the motion warrants a hearing
also lies within the trial court’s discretion.’” Holmes at ¶ 8, quoting State v. Starling, 10th Dist.
No. 01AP-1344, 2002-Ohio-3683, ¶ 10, citing State v. Hensley, 12th Dist. No. CA2002-01-002,
2002-Ohio-3494, ¶ 7. An abuse of discretion implies that the court’s attitude is unreasonable,
arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When
applying the abuse of discretion standard, an appellate court may not substitute its judgment for
that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶7} Pursuant to Crim.R. 33(A)(6), a new trial may be granted on the motion of the
defendant “[w]hen new evidence material to the defense is discovered, which the defendant
could not with reasonable diligence have discovered and produced at the trial.” Further, Crim.R.
33(B) states, in relevant part, that if the basis of the motion is newly discovered evidence, it:
shall be filed within one hundred twenty days after the day upon which the verdict
was rendered[.] 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 [trial] court finding that he was unavoidably prevented from discovering the
evidence within the one hundred twenty day period.
(Emphasis added.) Additionally, “‘[c]lear 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. Gilcreast, 9th Dist. No. 26311, 2013-
Ohio-249, ¶ 4, quoting State v. Covender, 9th Dist. No. 07CA009228, 2008-Ohio-1453, ¶ 6,
quoting State v. Mathis, 134 Ohio App.3d 77, 79 (1st Dist.1999), overruled on other grounds.
Finally, “[u]navoidable delay results when the party had no knowledge of the existence of the
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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.” Covender at ¶ 14,
quoting State v. Rodriguez–Baron, 7th Dist. No. 12-MA-44, 2012-Ohio-5360, ¶ 11.
{¶8} Here, Mr. Davis moved for leave to file a delayed motion for a new trial based
upon newly discovered evidence approximately 18 years after the verdict was rendered in this
matter. In his motion, Mr. Davis stated that he was unavoidably prevented from discovering the
new evidence because: (1) his trial counsel intentionally suppressed and/or withheld the AT&T
telephone records, and (2) the State intentionally withheld and/or suppressed the county jail’s
investigative report with regard to whether the State’s witness, William Avery, Jr., was
threatened by a co-defendant in this case. Also, according to Mr. Davis’ affidavit, he obtained
the AT&T telephone records in October of 2011, by filing a request with the clerk of the
Supreme Court of New York County, and he received the jail’s investigative report from a co-
defendant in November of 2011.
{¶9} First, the record clearly indicates that Mr. Davis was aware of the existence of the
AT&T telephone records during the 1994 trial because both he and his girlfriend testified that he
made these telephone calls from New York to Ohio on and after the date Marsha Blakely was
murdered. Further, in his affidavit, Mr. Davis states that his “trial counsel had [the phone
records] originally, but claimed that he lost this document and could not obtain it again.”
Inasmuch as Mr. Davis obtained these telephone records in October of 2011 simply by
requesting them from the New York clerk of courts, we see nothing to indicate that he could not
have requested the records within one hundred and twenty days after the verdict was rendered.
Further, upon obtaining the AT&T telephone records, Mr. Davis waited an additional eight
months to file his motion.
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{¶10} Although “Crim.R. 33(B) does not provide a specific time limit for the filing of a
motion for leave to file a delayed motion for new trial[,] * * * Ohio courts have adopted a
reasonableness standard.” State v. Cleveland, 9th Dist. No. 08CA009406, 2009-Ohio-397, ¶ 49.
“If 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.” (Internal quotations omitted.) Id. In the
present matter, Mr. Davis’ motion and affidavit fail to provide clear and convincing proof as to
why he was unavoidably prevented from discovering the telephone records in a timely manner.
Also, Mr. Davis provides no explanation as to why it was reasonable for him to wait an
additional eight months to file his motion for leave after obtaining the telephone records.
{¶11} Second, the record indicates that Mr. Davis acquired both the jail investigative
report, and Mr. Avery’s affidavit recanting his trial testimony in November of 2011. Although
the jail investigative report is dated December 23, 1991, and Mr. Avery’s affidavit was signed in
February of 2006, Mr. Davis claims that he did not obtain this evidence until 2011. Mr. Davis
does not provide clear and convincing proof as to why he was unavoidably prevented from
discovering this evidence in a timely manner. Further, Mr. Davis waited an additional seven
months after discovering this evidence to file his motion for leave. Again, Mr. Davis provides
no explanation regarding the reasonableness of his actions in waiting seven additional months to
file his motion.
{¶12} Based upon the record before us, we conclude that Mr. Davis did not meet his
burden of providing clear and convincing proof that he was unavoidably prevented from
discovering this evidence within the requisite time frame after the verdict was rendered, or that
he filed his motion for leave to file a delayed motion for new trial within a reasonable time after
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obtaining the newly discovered evidence. Further, a hearing on the motion was not warranted
because the evidence, on its face, did not support Mr. Davis’ claim that he was unavoidably
prevented from timely discovery of the evidence. See State v. Cleveland, 9th Dist. No.
08CA009406, 2009-Ohio-397, ¶ 54 (stating that the appellant was not entitled to a hearing on his
motion where he failed to “submit[] documents which, on their face, support his claim that he
was unavoidably prevented from timely discovering the evidence at issue.”). Therefore, the trial
court did not abuse its discretion in denying Mr. Davis’ motion without a hearing.
{¶13} We also note that Mr. Davis makes several arguments regarding the merits of his
delayed motion for a new trial, including: (1) prosecutorial misconduct (2) ineffective assistance
of trial counsel, and (3) the recantation of testimony. Because Mr. Davis’ delayed motion for a
new trial is not properly before this court, we decline to address these arguments at this time.
{¶14} Mr. Davis’ sole assignment of error is overruled.
III.
{¶15} In overruling Mr. Davis’ sole assignment of error, the judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, J.
WHITMORE, J.
CONCUR.
APPEARANCES:
IAN DAVIS, pro se, Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.