State v. Roberts

[Cite as State v. Roberts, 2022-Ohio-844.]

COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 21-CA000018
CLARENCE D. ROBERTS :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Guernsey County
Court of Common Pleas, Case No. 97-63

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 17, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOEL BLUE CLARENCE ROBERTS PRO SE
Prosecuting Attorney No. 351-300
BY: Jason R. Farley Allen Corectional Institution
Assistant Prosecutor Box 4501
409 Wheeling Avenue Lima, OH 45802
Cambridge, OH 43725
Guernsey County, Case No. 21-CA000018 2

Gwin, P.J.

{¶1} Defendant-appellant Clarence (Skip) Roberts appeals the June 22, 2021

judgment of the Guernsey County Common Pleas Court overruling his motion for leave

to file a motion for a new trial.

Facts and Procedural History

{¶2} The facts and procedural history were summarized by this Court in State v.

Roberts, 5th Dist. Guernsey No. 97 CA 29, 1999 WL 3956(Nov. 24, 1998) as follows.

{¶3} On June 30, 1997, the Guernsey County Grand Jury indicted appellant on

one count of aggravated robbery, in violation of R.C. 2911.01, and one count of

aggravated murder, in violation of R.C. 2903.01, with a death penalty specification. The

charges arose out of the robbery and stabbing death of Leo Sinnett on May 17, 1997.

The matter proceeded to trial by jury on September 15, 1997. The following evidence

was adduced at trial.

{¶4} On May 15, 1997, appellant, Albert “Chip” Andrews, John LaFollette, and

Mia Willey traveled to Zanesville, Ohio, in appellant’s white 1986 Oldsmobile Cutlas

Cierra on a “drug buy.” Appellant and Andrews purchased $100.00 worth of crack cocaine

from “a black guy in Zanesville” with money borrowed from Willey. After smoking the

crack, appellant and Andrews returned to the dealer’s house in order to get their money

back because they were not satisfied with the quality of the drugs. The dealer refused to

offer a money back guarantee and the group’s discussion focused on where to obtain

money to buy more drugs. Andrews stated he knew somebody the group could rob.

When Andrews mentioned Leo Sinnett’s name, appellant suggested foregoing the

robbing of Sinnett and proceeding to kill him
Guernsey County, Case No. 21-CA000018 3

{¶5} On May 17, 1997, the group reconvened at Willey’s house. Appellant and

Andrews left to purchase beer and cigarettes. When they returned, appellant and

Andrews asked LaFollette if he wanted to go for a drive. Andrews drove appellant’s

vehicle; appellant sat in the front passenger’s seat; and LaFollette positioned himself in

the back seat. Andrews drove to 12225 Lincoln Street, Buffalo, Ohio, Sinnett’s residence.

Appellant and LaFollette exited the car. Andrews remained in the vehicle. LaFollette

walked to the front of the house to inspect some trees he had arranged to remove for

Sinnett. As appellant exited the front door of Sinnett’s residence, he told LaFollette,

“There’s no need in talking to him, he’s dead.” The two returned to the vehicle and the

trio left the scene.

{¶6} At 6:49 p.m. on the same evening, Sergeant Brian Vierstra of the Ohio

State Highway Patrol observed a white Oldsmobile traveling westbound out of Buffalo on

State Route 313, just past the I–77 bypass. As the vehicle approached, Sergeant Vierstra

noticed the car did not have any visible front registration. When the vehicle traveled past,

the officer did not observe any visible rear registration. Thereafter, Sergeant Vierstra

activated his lights and pursued the vehicle, which continued westbound until the driver

entered a private driveway. The driver and right front passenger exited the vehicle. The

officer ordered the passenger back into the vehicle and instructed the driver to walk to the

back of the car. Sergeant Vierstra observed a third male in the back seat of the vehicle.

{¶7} As the officer spoke with the driver, who was identified as Andrews,

Sergeant Vierstra found him to be under the influence of alcohol. When Andrews refused

to submit to field sobriety tests, the officer placed him under arrest. Shortly thereafter,

Trooper Stolarick arrived at the scene.
Guernsey County, Case No. 21-CA000018 4

{¶8} The two officers spoke with appellant, who was covered in blood from his

waist to his knees. Trooper Stolarick asked appellant about the blood. Appellant informed

the officers he had just processed a road kill deer. When the officers advised appellant

the vehicle would be impounded, appellant told them he had a knife on his person.

Sergeant Vierstra described the weapon as a four-inch, double-edged knife with a black

handle contained in a leather sheath.

{¶9} As the officers spoke with appellant, LaFollette exited the vehicle and

walked directly into a nearby residence. The officers did not observe any blood on his

clothing or his person. Jim Tuttle, the owner of the house, appeared and offered to allow

appellant and LaFollette to stay with him. Thereafter, Sergeant Vierstra transported

Andrews to the station, while Trooper Stolarick waited for the tow truck to impound

appellant’s vehicle.

{¶10} After leaving the scene, Trooper Stolarick contacted Deputy Masters of the

Cambridge Sheriff’s Department to inform the deputy he (Trooper Stolarick) was assisting

that evening in overseeing the Meadowbrook High School prom goers. During their

conversation, Deputy Masters received a call from his dispatcher advising of the

discovery of a body. Deputy Masters and Trooper Stolarick proceeded to the Sinnett

residence. Upon their arrival, the officers learned of Sinnett’s stabbing death. The

Trooper recalled the traffic stop he and Sergeant Vierstra made earlier that evening.

Deputy Masters, Trooper Stolarick and two other deputies did not locate anyone upon

their return to the Tuttle residence.
Guernsey County, Case No. 21-CA000018 5

{¶11} The following day, appellant was arrested. LaFollette fled to Pennsylvania

where he was arrested approximately one month after the incident. Andrew, LaFollette,

and Willey were named as co-defendants.

{¶12} Special Agent Mike Kopfer of the Bureau of Criminal Identification assisted

in the investigation of Sinnett’s homicide. During his investigation, Agent Kopfer found

bloodstains on the front passenger’s seat of the white Oldsmobile. The agent did not

observe any other bloodstains in the vehicle. Margaret Saupe, a forensic scientist with

the Bureau of Criminal Identification, also examined the Oldsmobile and observed

bloodstains on the front passenger’s seat. A DNA analysis of the blood sample indicated

the blood was that of the victim. Saupe’s analysis of Andrews’ personal belongings, which

were recovered during the investigation, revealed no traces of blood.

{¶13} After LaFollette’s arrest in Pennsylvania, he gave two taped statements to

the Guernsey County Sheriff’s Department. LaFollette’s first statement was given to

Detective Ron Pollock on June 18, 1997. The second was given to Detective Pollock and

Detective John Davis on June 25, 1997.

{¶14} At trial, appellant called LaFollette as a witness. Due to LaFollette’s

alignment with the state, the trial court permitted both parties latitude in their examinations

of LaFollette. Attorney Tingle, appellant’s trial counsel, attempted to impeach LaFollette

with his prior statements. However, the trial court found the statements were not

inconsistent with the witness’ trial testimony and would not allow Attorney Tingle to make

further inquiry into the statements LaFollette made to police. The statements were

proffered into evidence.
Guernsey County, Case No. 21-CA000018 6

{¶15} After hearing all the evidence and deliberations, the jury found appellant

guilty of aggravated robbery and aggravated murder. The jury did not recommend the

death sentence. Via Judgment of Conviction dated October 6, 1997, the trial court

memorialized the jury’s verdicts. Via Judgment Entry of Sentence dated November 4,

1997, the trial court sentenced appellant to life imprisonment without parole for the

offense of aggravated murder and a term of ten years for the offense of aggravated

robbery. The trial court ordered the sentences to run consecutively.

{¶16} Appellant filed a direct appeal to this Court. This Court affirmed the trial

court. See State v. Roberts, 5th Dist. Guernsey No. 97 CA 29, 1999 WL 3956(Nov. 24,

1998).

{¶17} After unsuccessfully appealing his case in the Ohio state courts, Roberts

filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States

District Court for the Southern District of Ohio. The district court denied the writ. The

Sixth Circuit Court of Appeals granted Roberts a certificate of appealability with respect

to the following claims: (1) whether Roberts was deprived of a fair trial, a trial by jury, and

due process when the trial court ordered that alternate jurors be present during

deliberations; and (2) whether Roberts was deprived of the effective assistance of

appellate counsel when his appellate counsel failed to raise as error the trial court’s order

that alternate jurors be present during deliberations. The court affirmed the district court’s

denial of Roberts’ petition. Roberts v. Carter, 337 F.3d 609(6th Cir. 2003). The United

States Supreme Court denied appellant’s writ of Certiorari. Roberts v. Carter, 540 U.S.

1151, 124 S.Ct. 1150 (2004)
Guernsey County, Case No. 21-CA000018 7

{¶18} On October 1, 2004, appellant filed an application for DNA testing. The

Guernsey County Prosecuting Attorney filed a report regarding the existence of biological

material available for DNA testing on December 5, 2004. On April 6, 2005, appellant was

appointed counsel to pursue his application for DNA testing. The trial court denied

appellant’s request on December 14, 2005, concluding that: 1). R.C. 2953.74(C)(1) had

been satisfied in that biological material was collected from the crime scene or the victim

of the offense and that the material is still in existence; 2). R.C. 2953.74(C)(2)(a) was not

satisfied as the testimony at appellant’s trial indicated that the sample of biological

material does not contain sufficient material to be extracted for a test sample; and 3).

Even if there were sufficient biological material to perform DNA testing the results would

not be outcome determinative because no fingerprint or hair was attributed to appellant

during his trial and the testimony of the witnesses was sufficient to convict appellant even

if he were excluded as the source of the hair or fingerprint. This Court affirmed. State v.

Roberts, 5th Dist. Guernsey No. 2006–CA–02, 2006–Ohio–5018.

{¶19} On May 16, 2005, appellant filed a pro se Motion to Vacate and

Reconstruct Sentence pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,

160 L.Ed.2d 621(2005), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159

L.Ed.2d 403(2004). The trial court denied appellant’s motion. In response to appellant’s

request for findings of fact and conclusions of law, the trial court issued those findings

and conclusions on August 17, 2005. The trial court concluded that neither of Mr. Roberts’

sentences exceeded the statutory maximum, and that Blakely “did not deal with the issue

of consecutive sentences for multiple convictions.” Judgment Entry filed August 17, 2005,

at 2.
Guernsey County, Case No. 21-CA000018 8

{¶20} Appellant filed his appeal from the denial of his Petition to Vacate or

Reconstruct Sentence. This court affirmed the trial court’s decision. See, State v.

Roberts, 5th Dist. No.2005–CA–26, 2006–Ohio–782.

{¶21} On March 26, 2007, Roberts filed a Motion for Records, Documents, and

Discovery Materials in the Guernsey County Common Pleas Court. On May 2, 2007, the

Guernsey County Common Pleas Court granted in part and denied in part appellant’s

Motion with respect to the Guernsey County Prosecutor’s Office. In that entry, the Court

ordered the State of Ohio to disclose all relevant discovery that does not constitute

attorney work product.

{¶22} On May 31, 2007, pursuant to the order of the Guernsey County Common

Pleas Court, the Guernsey County Prosecutor’s Office sent two hundred and four pages

of discovery to the appellant. On June 4, 2007, appellant filed a Motion to Compel stating

that the Prosecutor’s Office did not comply with the Court Order of May 2, 2007. On June

19, 2007, appellant filed a “Motion to Supplement the Record,” requesting the “Court to

supplement the motions to compel now pending before [the trial court] and scheduled for

a non-oral hearing on June 19, 2007.” On June 19, 2007, the Guernsey County Common

Pleas Court denied appellant’s Motion to Compel with respect to the Guernsey County

Prosecutor’s Office stating that the discovery was provided. On July 13, 2007, the trial

court found appellant’s “motion to supplement the record” moot as the Court had

previously denied appellant’s motion to compel stating that the discovery was provided.

This Court affirmed the trial court. State v. Roberts, 5th Dist. Guernsey No. 2007–CA–

33, 2008–Ohio–3115.
Guernsey County, Case No. 21-CA000018 9

{¶23} On July 18, 2008, appellant filed a pro se motion for leave to file a new trial

motion. The court granted leave to file a motion for new trial on October 27, 2008, and

appointed counsel. The pro se motion was filed on October 28, 2008, and supplemented

by counsel on February 23, 2009. The motion alleged that appellant’s counsel had a

conflict of interest. The pro se motion further noted that Roberts had copies of the

Andrew’s sentencing hearing. See, Motion for New Trail Rule 33, filed Oct. 27, 2008 at

14-15 [Docket Number 202]. In his motion, Roberts noted,

Additionally, Defendant Roberts learned that Co-Defendant Andrews

testified at his sentencing hearing that Co-Defendant John LaFollette was

in possession of the victim’s wallet in the back seat of the car....

Motion for New Trail Rule 33, filed Oct. 27, 2008 at 23-24. Roberts attached to his motion

for a new trial portions of the transcript of Andrews’ sentencing hearing held November

4, 1997 as Exhibit “C.” Further as newly discovered evidence attached to the motion was

an affidavit of Dillon Sargent, an inmate at the Lebanon Correctional Institution. See,

State v. Roberts, 5th Dist. Guernsey No 09 CA 11, 2010-Ohio-2935, ¶23.

{¶24} The court overruled the motion for new trial on March 20, 2009, finding that

there was not sufficient evidence that an actual conflict of interest existed on the part of

Attorney Tingle, as his representations ended prior to the murder of Leo Sinnett. The

court further found that Attorney Biegler did not represent the Children’s Services Board

at the time of trial, but did represent the Guernsey County Child Support Enforcement

Agency on a contract basis in paternity matters. The court found no demonstration of a

conflict of interest on the part of Biegler. The court found that the affidavit of Sargent
Guernsey County, Case No. 21-CA000018 10

served merely to impeach or contradict prior evidence and thus was not sufficient grounds

for a new trial. The trial court additionally found,

The Court finds that Defendant argues the testimony of Albert “Chip”

Andrews at his sentencing hearing places co-defendant John LaFollette

inside the Sinnet [sic.] residence and advised the Court LaFollette had the

victim’s wallet. However, the Court finds that this “newly discovered

evidence” does not disclose a strong probability that it will change the result

if a new trial is granted and merely impeached and contradicts the former

evidence. See, Ohio v. Perry, 148 Ohio St. 505.

Entry, filed Mar 20, 2009, at 1. [Docket Number 212]. We affirmed the trial court’s

decision. See, State v. Roberts, 5th Dist. Guernsey No. 09 CA 11, 2010-Ohio-2935.

{¶25} On April 19, 2021, Roberts filed five motions: 1), Motion for leave to file a

motion for a new trial, 2). Motion to appoint counsel, 3). Motion to proceed as indigent;

4). A Motion for an Evidentiary Hearing and 5). Motion for a new trial.

{¶26} Roberts submitted the affidavit of co-defendant Albert “Chip” Andrews in

support of his motions. Andrews was the driver of the car on the night Stinnett was

stabbed to death. Roberts argued that he recently obtained this affidavit. Roberts

contended that the affidavit contained exculpatory evidence that was known to and

withheld by the state.

{¶27} By Order filed June 22, 2021, the trial court denied Roberts’ motion for an

evidentiary hearing, motion for a new trial and motion to appoint counsel.

Assignments of Error

{¶28} Roberts, pro se, raises Two Assignments of Error,
Guernsey County, Case No. 21-CA000018 11

{¶29} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION IN FAILING TO CONDUCT A HEARING TO DETERMINE WHETHER

APPELLANT WAS UNAVOIDABLY PREVENTED FROM OBTAINING THE NEWLY

DISCOVERED EVIDENCE UPON WHICH HIS PROPOSED MOTION FOR NEW TRIAL

RELIES WITHIN 120 DAYS OF THE VERDICT.

{¶30} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION IN ERRONEOUSLY DETERMINING THAT APPELLANT WAS NOT

UNAVOIDABLY PREVENTED FROM OBTAINING THE NEWLY DISCOVERED

EVIDENCE UPON WHICH HIS PROPOSED MOTION FOR A NEW TRIAL RELIES

WITHIN 120 DAYS OF THE VERDICT.”

I & II

{¶31} In his two assignments of error, Roberts argues that the trial court abused

its discretion in overruling his motion for leave to file a motion for a new trial without first

conducting an evidentiary hearing.

Standard of Appellate Review – Motion for a New Trial filed beyond

120 days of the verdict

{¶32} The decision whether to grant a new trial on grounds of newly discovered

evidence falls within the sound discretion of the trial court. State v. Hawkins, 66 Ohio

St.3d at 350, 612 N.E.2d 1227. We cannot reverse unless there has been a gross abuse

of that discretion, and whether that discretion has been abused must be disclosed from

the entire record. State v. Petro, 148 Ohio St. at 507- 508, 76 N.E.2d 370, quoting State

v. Lopa, 96 Ohio St. 410, 411, 117 N.E. 319(1917).
Guernsey County, Case No. 21-CA000018 12

{¶33} “The question of whether to decide a motion on the supporting evidence

filed with the motion or to hold an evidentiary hearing is within the discretion of the trial

court.” United States v. O’Dell, 805 F.2d 637, 643 (6th Cir.1986); State v. Sutton, 2016-

Ohio-7612, 73 N.E.3d 981, ¶ 13 (8th Dist.); State v. Shuster, 5th Dist. Morgan No.

18AP0007, 2019-Ohio-4233, ¶9.

{¶34} A review under the abuse-of-discretion standard is a deferential review. “It

is not sufficient for an appellate court to determine that a trial court abused its discretion

simply because the appellate court might not have reached the same conclusion or is,

itself, less persuaded by the trial court’s reasoning process than by the countervailing

arguments.” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14, citing AAAA

Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157,

161 (1990).

Issue for Appellate Review: Whether the trial court abused its discretion in

denying Roberts motion for a new trial without a hearing

{¶35} Roberts premised his motion for new trial on newly discovered evidence

that he alleges demonstrated misconduct on the part of the prosecution. Crim.R. 33

provides, in pertinent part:

(A) Grounds. A new trial may be granted on the motion of the

defendant for any of the following causes affecting materially his substantial

rights:

***

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

the state;
Guernsey County, Case No. 21-CA000018 13

***

(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.

***

(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.

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 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.
Guernsey County, Case No. 21-CA000018 14

{¶36} Thus, Crim.R. 33(B) contemplates a two-step procedure when a defendant

seeks to file a motion for new trial outside either the 14-day deadline for motions filed

under Crim.R. 33(A)(2) or the 120-day deadline for motions filed under Crim.R. 33(A)(6).

State v. Hawk, 10th Dist. Franklin No. 21AP-265, 2021-Ohio-4533, ¶13. In Hawk, the

Court noted,

In the first step, the defendant must demonstrate that he was

unavoidably prevented from discovering the evidence relied upon to support

the motion for new trial. State v. Bethel, 10th Dist. No. 09AP-924, 2010-

Ohio-3837, ¶ 13; State v. Gaven, 10th Dist. No. 16AP-645, 2017-Ohio-

5524, ¶ 13, 17. In the second step, if the trial court finds unavoidable

prevention by clear and convincing evidence, then the defendant must file

the motion for new trial within seven days from the trial court’s order. Bethel

at ¶ 13; Gaven at ¶ 13, 17.

2021-Ohio-4533, ¶13.

{¶37} “The phrase ‘unavoidably prevented’ means that a defendant was unaware

of those facts and was unable to learn of them through reasonable diligence.” State v.

Thorton, 5th Dist. Muskingum No. CT2016-0041, 2017-Ohio-637, ¶41. In determining

whether a defendant has exercised reasonable diligence, courts have held “the defendant

must describe all investigative actions undertaken within the 120-day period for timely

filing a Crim.R. 33(A)(6) motion and explain why he was unavoidably prevented from

discovering the evidence before the 120-day period elapsed.” State v. Cashin, 10th Dist.

Franklin No. 17AP-338, 2017-Ohio-9289, ¶17 (citations omitted). “Mere conclusory

allegations do not prove that the defendant was unavoidably prevented from discovering
Guernsey County, Case No. 21-CA000018 15

the evidence he seeks to introduce as support for a new trial.” Cashin, ¶ 17, (citations

omitted).

{¶38} In order to warrant the granting of a motion for new trial in a criminal case

based on newly discovered evidence, the defendant must show that the new 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).

Roberts fails to first establish, pursuant to Crim.R. 33(B), that he was

unavoidably prevented from discovering the evidence of Albert “Chip” Andrews’s

statements.

{¶39} Roberts argues that he received the affidavit from Andrews on or about

February 11, 2020. In his affidavit, Andrews states that within minutes of leaving

Stinnett’s residence he heard Roberts ask co-defendant LaFollette, “How did you do?”

He further heard LaFollette respond that he was able to get “fifty.” When he looked in the

backseat, Andrews claims that he saw LaFollette with “wallet and money belonging to

Leo Stinnett.” Andrews averred that he related these facts in open court at his plea

hearing on or about November 4, 1997. Roberts claims the state withheld this

“exculpatory” evidence.

{¶40} As noted above, Roberts was in possession of the sentencing

transcript of Andrews at the time he filed his previous motion for a new trial on

October 27, 2008. The trial court ruled that Andrews’ statements were not
Guernsey County, Case No. 21-CA000018 16

exculpatory but merely, impeached and contradicted the former evidence. The

affidavit Roberts submits in support of his motion for leave to file a motion for a

new trial on April 19, 2021 contains no new evidence or statements. Further, we

note that the sentencing hearing transcript of Andrews suggests that he was

asleep and he did not state that he observed who went into or came out of Sinnett’s

residence. LaFollette’s possession of Sinnett’s wallet would not be inconsistent

with Roberts’ guilt or in any way explain Roberts’ possession of a knife during the

traffic stop, the blood on the front seat of the car, or the blood on Roberts’s hands

as observed by the officers during the traffic stop. Put simply, the affidavit does

not contain “newly discovered evidence” as contemplated by CrimR. 33(A)(6).

{¶41} As a further matter, we consider the application of res judicata to this case.

“The doctrine of res judicata ‘prevents repeated attacks on a final judgment and applies

to issues that were or might have been previously litigated.’” State v. Russell, 10th Dist.

No. 06AP-498, 2006-Ohio-6221, ¶ 12; State v. Lindsay, 5th Dist. Richland No. 2019 CA

0059, 2019-Ohio-5283, ¶21-22. Andrews’ affidavit submitted in support of the present

motion does not add anything new; it merely repeats the statements he made at his

sentencing hearing that Roberts already had in his possession. See, Motion for New Trial

Rule 33, filed Oct. 27, 2008 at Exhibit “C.” [Docket Number 202]. Roberts raised the

issue of Andrew’s statements and the trial court ruled on the issue of Andrews’ statements

made during his plea hearing in the trial court’s Judgment Entry filed March 20, 2009

overruling Roberts’s motion for a new trial that he had filed on October 27, 2008.

Accordingly, we find that Roberts’s motion is barred by res judicata.
Guernsey County, Case No. 21-CA000018 17

{¶42} In light of all of the foregoing, this Court finds that the trial court did

not abuse its discretion in denying appellant’s Crim.R. 33(B) motion for leave to

file a motion for new trial based on newly discovered evidence.

{¶43} Appellant’s First and Second Assignments of Error are overruled.

{¶44} The judgment of the Guernsey County Court of Common Pleas is

affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, John, J., concur