[Cite as State v. Jackson, 2019-Ohio-4893.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 108241 

 v. : 

 

EMMANUEL JACKSON, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: November 27, 2019 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-16-608044-C 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Mary M. Frey and Gregory J. Ochocki, 

Assistant Prosecuting Attorneys, for appellee. 

Susan J. Moran, for appellant. 

KATHLEEN ANN KEOUGH, J.: 

Defendant-appellant, Emmanuel Jackson, appeals the trial court’s 

decision denying him leave to file a motion for a new trial without a hearing. For the 

reasons that follow, we affirm the trial court’s decision. 
Following a jury trial in 2017, Jackson was convicted of aggravated 

robbery with a repeat violent offender specification, and sentenced to 11 years in 

prison. This court affirmed his convictions and sentence in State v. Jackson, 8th 

Dist. Cuyahoga No. 105919, 2018-Ohio-1633 (hereinafter “Jackson I”). 

Relevant to this appeal, this court in Jackson was critical of the state’s 

plea agreement with Jackson’s codefendants, Anthony Palmentera and Bradley 

Lease, which contained a condition that prevented both of them from testifying as 

witnesses for Jackson. This court found that the state impaired and interfered with 

Jackson’s right to compulsory process. Id. at ¶ 17-22. However, this court 

determined that the interference did not amount to reversible error because Jackson 

did not specify to what Palmentera and Lease would have testified; he only 

speculated that a reasonable probability existed that their testimony would have 

been helpful to him. Id. at ¶ 21-22. Because Jackson failed to “explain what 

material, favorable evidence Palmentera and Lease would have provided for the 

defense,” he did not withstand his burden of demonstrating a Sixth Amendment 

violation. Id. at ¶ 24, 27. Significant to this conclusion, this court found that Jackson 

did not raise the compulsory process issue during trial or seek to obtain his 

codefendants’ testimony. Id. at ¶ 27. Moreover, this court found that the evidence 

presented at trial demonstrated that there was “no reasonable doubt of Jackson’s 

guilt,” and that “Palmentera and Lease’s testimony would not have changed the 

outcome of the trial.” Id. at ¶ 28. 
Subsequently, in November 2018, Jackson moved for leave to file a 

motion for new trial. The basis for his new trial request was that he had obtained 

new evidence, specifically an unsolicited affidavit from Palmentera, in which 

Palmentera denied knowing Jackson and averred that Jackson was not involved in 

the robbery from which Palmentera was convicted. According to Jackson, 

Palmentera’s affidavit cured the deficiency that this court found in Jackson I. 

The trial court denied his motion for leave, stating 

Defendant has failed to demonstrate on the face of his filings that he 

was unavoidably delayed from timely discovering this purported new 

evidence. Defendant has also failed to demonstrate that this is new 

evidence as defendant was aware of these facts during his trial and 

immediately thereafter took no steps to diligently inquire as to what 

evidence his codefendant would have offered. In fact jurors heard the 

evidence that defendant did not know Palmentera and was not part of 

the crime through his statement to police. Defendant and his appellate 

counsel did not attempt to obtain the affidavit within 120 days. 

Therefore defendant has failed to support his motion for leave in that 

he was not unavoidably prevented from discovering this evidence. 

Jackson now appeals, raising two assignments of error, which will be 

addressed together. 

In his first and second assignments of error, Jackson contends that 

the trial court erred in denying his motion for leave to file a motion for new trial. He 

contends that, at a minimum, the trial court should have conducted a hearing on his 

motion. 

Crim.R. 33 sets forth six grounds upon which a trial court may grant 

a defendant’s motion for a new trial. In this case, Jackson moved for a new trial 

pursuant to Crim.R. 33 (A)(6), which provides that a court may grant a motion for 
new trial “when new evidence material to the defense is discovered, which the 

defendant could not with reasonable diligence have discovered and produced at 

trial.” 

A motion for new trial based on newly discovered evidence shall be 

filed within 120 days after verdict. Crim.R. 33(B). In order to file such a motion 

beyond the 120 days, the defendant must first file a motion for leave, showing by 

“‘clear and convincing proof that he * * * was unavoidably prevented from 

discovering the evidence within the [time provided].’” State v. Bridges, 8th Dist. 

Cuyahoga Nos. 103634 and 104506, 2016-Ohio-7298, ¶ 18, quoting State v. HooverMoore, 2015-Ohio-4863, 50 N.E.3d, 1010, ¶ 13 (10th Dist.). 

“[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.” State v. Davis, 10th Dist. Franklin No. 03AP-1200, 2004-Ohio-6065, ¶ 

11, citing State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th 

Dist.1984). 

The defendant bears the burden of showing by clear and convincing 

proof that he was unavoidably prevented from filing his motion within the time 

prescribed, and he must make such showing with more than a mere allegation that 

he was unavoidably prevented from discovering the evidence he seeks to introduce 

in support for a new trial. Bridges at ¶ 20. 
A defendant is entitled to a hearing on his motion for leave if he 

submits “documents that on their face support his claim that he was unavoidably 

prevented from timely discovering the evidence” at issue. State v. McConnell, 170 

Ohio App.3d 800, 2007-Ohio-1181, 869 N.E.2d 77, ¶ 19 (2d Dist.). Although a 

defendant may file his motion for a new trial along with his request for leave, “the 

trial court may not consider the merits of the motion for a new trial until it makes a 

finding of unavoidable delay. * * * If the defendant submits documents that on their 

face support his claim that he was unavoidably prevented from timely discovering 

the evidence, the trial court must hold a hearing to determine whether there was 

unavoidable delay.” State v. Brown, 8th Dist. Cuyahoga No. 95253, 2011-Ohio1080, ¶ 14, citing State v. Stevens, 2d Dist. Montgomery Nos. 23236 and 23315, 

2010-Ohio-556, ¶ 11. 

In this case, the trial court denied Jackson’s request for leave because 

he failed to support his motion with clear and convincing evidence to withstand his 

burden of demonstrating that he was unavoidably prevented from discovering the 

new evidence, i.e., Palmentera’s affidavit in which he provided sworn testimony that 

he did not know Jackson and that Jackson was not involved in the robbery 

Palmentera committed. We review the trial court’s decision for an abuse of 

discretion. State v. Gray, 8th Dist. Cuyahoga No. 92646, 2010-Ohio-11, ¶ 17. 

Jackson first contends that the trial court abused its discretion in 

denying his motion when it found that Palmentera’s affidavit was not “new 

evidence” because Jackson was aware of the “facts” at trial that are now presented 
in Palmentera’s affidavit. According to Jackson, the “facts” are (1) whether he and 

Palmentera knew each other; and (2) whether Jackson participated in the offenses 

for which Palmentera was convicted. We agree with the trial court that these “facts” 

are not newly discovered. 

Although the affidavit itself is “new evidence,” the content of the 

affidavit is not new. At trial, Jackson’s video-taped interview with the police in 

which he denied knowing Palmentera and participating in the robbery offenses was 

played for the jury. Jackson contends that Palmentera’s statements in his affidavit 

are relevant because they corroborate Jackson’s self-serving statements. However, 

as Jackson admitted, the facts in the affidavit are not new and he “had prior 

knowledge of the essence of the facts in Palmentera’s affidavit.” (Brief, p. 2.) 

Accordingly, Jackson knew of the grounds supporting his motion for a new trial; 

thus, he cannot withstand his burden under Crim.R. 33. 

Jackson next contends that the trial court abused its discretion in 

denying his motion when it found that Jackson “failed to demonstrate on the face of 

his filings that he was unavoidably delayed from timely discovering” Palmentera’s 

affidavit, and that he “took no steps to diligently inquire as to what evidence 

[Palmentera] would have offered.” 

Jackson claims he was delayed in his discovery and ability to obtain 

Palmentera’s affidavit because they were both incarcerated throughout the 

proceedings and not located in the same correctional facility. However, the record 

reflects that Jackson knew at all times of Palmentera’s existence and identity — both 
were apprehended together, identified in a cold stand together, and ultimately 

arrested together. They also appeared with each other during pretrial proceedings 

and during the beginning stages of trial until Palmentera entered into a plea 

agreement during voir dire. It is disingenuous to argue that there was not an 

opportunity to discover what evidence Palmentera would have offered. 

Jackson also relies on this court’s opinion in Jackson I for the 

proposition that the state’s conditioned plea agreement interfered with his ability to 

obtain Palmentera’s statements and from calling him as a witness during his trial. 

First, it is specious to argue that Palmentera was unavailable to testify at trial only 

because he was precluded from doing so by the nature of his plea agreement. 

Palmentera was a codefendant, and it is likely the Fifth Amendment may have also 

prevented Jackson from calling Palmentera as a witness or procuring the testimony 

he now relies on as justification for a new trial. 

Additionally, and as this court noted, the record reflects that Jackson 

did not know that Palmentera’s plea agreement contained any condition that 

prohibited him from testifying on Jackson’s behalf. Jackson, 8th Dist. Cuyahoga 

No. 105919, 2018-Ohio-1633, at ¶ 16. As far as Jackson knew at the time of his trial, 

nothing prevented him from calling Palmentera as a witness. Jackson could not 

have been unavoidably prevented from obtaining any statements from Palmentera 

when he never attempted to obtain any information from him during his trial. 

Finally, even if Palmentera had testified, this court has already determined that, 
“Palmentera and Lease’s testimony would not have changed the outcome of trial.” 

Id. at ¶ 28. 

Finally, Jackson’s affidavit and his motion for leave clearly 

demonstrate that he failed to exercise any diligence during the one and one-half 

years following the guilty verdicts to discover or obtain Palmentera’s statement or 

affidavit despite knowing the “facts” all along — that they did not know each other 

or that Jackson did not participate in the offenses for which Palmentera pleaded 

guilty. See State v. Cashin, 10th Dist. Franklin No. 17AP-338, 2017-Ohio-9289 

(defendant cannot claim that the evidence was undiscoverable simply because no 

efforts were made to obtain the evidence sooner). 

Accordingly, the trial court did not abuse its discretion in denying 

Jackson’s motion for leave to file a motion for a new trial. The evidence supporting 

his motion does not, on its face, support his claim that he was unavoidably prevented 

from discovering the evidence contained in the affidavit. In fact, Jackson knew of 

the grounds he wished to raise in his motion for a new trial during the statutory time 

frame, and knew of Palmentera’s existence and the evidence he wished to obtain 

from him. The record demonstrates that Jackson simply chose not to locate and 

contact Palmentera. The first assignment of error is overruled. 

Because Jackson’s motion for leave, on its face, does not demonstrate 

by clear and convincing evidence that he was unavoidably prevented from timely 

discovering the evidence at issue, the trial court did not abuse its discretion in not 

holding a hearing on the motion. State v. Brown, 8th Dist. Cuyahoga No. 95253, 
2011-Ohio-1080, ¶ 14. Accordingly, Jackson’s second assignment of error is also 

overruled. 

Judgment affirmed. 

It is ordered that appellee recover from appellant 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. 

 

KATHLEEN ANN KEOUGH, JUDGE 

EILEEN A. GALLAGHER, J., CONCURS; 

MARY EILEEN KILBANE, A.J., CONCURS IN JUDGMENT ONLY