[Cite as State v. Allen, 2024-Ohio-2188.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs.

DWIGHT ALLEN,

 Defendant-Appellant.

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APPEAL NO. C-230280

TRIAL NOS. B-9204670

 B-9206654

O P I N I O N.

Criminal Appeal From: Hamilton County Court of Common Pleas

 

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 7, 2024 

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Dwight Allen, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS

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ZAYAS, Presiding Judge.

{¶1} Defendant-appellant Dwight Allen appeals the judgment of the 

Hamilton County Court of Common Pleas denying his Crim.R. 33(B) motion for leave 

to file a motion for a new trial. Because Allen cannot show that he was unavoidably 

prevented from discovering the grounds underlying his new-trial motion or show that 

any exculpatory or impeachment evidence had been suppressed by the state, we affirm 

the lower court’s judgment.

Factual and Procedural History

{¶2} Thirty years ago, Allen was convicted upon jury verdicts of aggravated 

murder, aggravated robbery, and rape in connection with the death of Allen’s 74-yearold mother-in-law and the rape of his 13-year-old step-daughter. He was acquitted of 

a second count of rape as well as of the felonious assault of his estranged wife. Allen 

unsuccessfully challenged his convictions on direct appeal and in a 2010 

postconviction petition challenging the trial court’s subject-matter jurisdiction over 

his case. State v. Allen, 1st Dist. Hamilton Nos. C-930159 and C-930161 (May 25, 

1994), appeal not accepted, 70 Ohio St.3d 1465, 640 N.E.2d 527 (1994); State v. Allen, 

1st Dist. Hamilton No. C-110152 (Nov. 10, 2011). 

{¶3} In August 2022, Allen moved for leave to file a delayed motion for a new 

trial, asserting as its basis his recent discovery of the state’s suppression of evidence in 

violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In 

Brady, the United States Supreme Court recognized that the prosecution has an

affirmative duty to disclose evidence that is favorable to the accused and material to

the accused’s guilt or punishment. In his motion, Allen cites to case law discussing a

state’s improper use of false and misleading testimony to obtain a conviction. 

{¶4} The state opposed the motion for leave, noting that Allen did not specify 

what evidence had been suppressed by the state that he had recently discovered. In 

response, Allen cited to pages from the trial transcript that reflect defense counsel 
OHIO FIRST DISTRICT COURT OF APPEALS

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placing of record what discovery he had received from the state and when counsel had 

received it. Ultimately, the common pleas court denied the motion without an 

evidentiary hearing finding that Allen had not shown how he was unavoidably 

prevented from learning of the existence of his grounds for a new trial within 120 days 

from the date of the verdict.

{¶5} Allen now appeals, raising eight assignments of error. 

Allen Cannot Demonstrate Unavoidable Prevention

{¶6} In his first assignment, Allen maintains that the common pleas court 

abused its discretion by denying his Crim.R. 33(B) motion for leave without first 

holding an evidentiary hearing. We are unpersuaded.

{¶7} We review the denial of a Crim.R. 33(B) motion for leave to file a newtrial motion without an evidentiary hearing for an abuse of discretion. State v. Smith, 

1st Dist. Hamilton No. C-220583, 2023-Ohio-3954, ¶ 6, citing State v. Hatton, 169 

Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, ¶ 29. Where a defendant seeks leave 

to file a delayed motion for a new trial on the basis of newly discovered evidence, the 

defendant must show by clear and convincing proof that he was unavoidably 

prevented from discovering the evidence upon which he now relies to support his 

motion for a new trial. Crim.R. 33(B). 

{¶8} An evidentiary hearing on a Crim.R. 33(B) motion is only required if the 

evidence offered in support of the motion demonstrates on its face unavoidable 

prevention. State v. Howard, 1st Dist. Hamilton No. C-210285, 2022-Ohio-2159, ¶ 

27, citing State v. Carusone, 1st Dist. Hamilton No. C-130003, 2013-Ohio-5304, ¶ 4. 

In the context of a Brady claim, a defendant may satisfy the “unavoidably prevented” 

requirement contained in Crim.R. 33(B) by establishing that the prosecution 

suppressed the evidence on which the defendant now relies in seeking a new trial. 

State v. McNeal, 169 Ohio St.3d 47, 2022-Ohio-2703, 201 N.E.3d 861, ¶ 17, citing State 

v. Bethel, 167 Ohio St.3d 326, 2022-Ohio-783, 192 N.E.3d 470, ¶ 25. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶9} Upon a review of the record, we agree that Allen did not specify what 

evidence he was relying on to support his motion for a new trial. Although he claims 

favorable evidence was suppressed, his citation to the pages in the trial transcript at 

the most support the possibility that he is claiming that the arresting officer’s 

testimony was generally false and misleading and that the arresting officer’s statement 

to the state had been suppressed. But the record shows that although defense counsel 

initially believed he had not received the arresting officer’s statement, he did

eventually report to the trial court that the statement was provided by the state in the 

discovery sent to defense counsel. 

{¶10} Because Allen has not specified what evidence he has recently 

discovered and cannot show that the arresting officer’s statement had been suppressed 

by the state, we cannot say that the common pleas court acted unreasonably in denying 

Allen’s Crim.R. 33(B) motion for leave.

{¶11} For the first time on appeal, Allen now argues that the evidence that was 

suppressed by the state was a police report that apparently charged Allen with 

domestic violence against his estranged wife and one of the arresting officers’ grand 

jury testimony. But the argument that these two pieces of evidence were suppressed 

has been waived on appeal because Allen did not raise this issue below. See State v. 

Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, 145 N.E.3d 278, ¶ 10, citing 

Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997) (“A first 

principle of appellate jurisdiction is that a party ordinarily may not present an 

argument on appeal that it failed to raise below.”). However, even if Allen had raised 

the issue that a police report and grand jury testimony had been suppressed, he still 

cannot demonstrate that he was unavoidably prevented from discovering that 

evidence or that the state had suppressed that evidence. In fact, the police report Allen 

is referring to was evidence in defense counsel’s possession that he had attempted to 

introduce at trial. The trial court excluded the report, finding it was not relevant to 
OHIO FIRST DISTRICT COURT OF APPEALS

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the charged offenses at issue in Allen’s trial. And Allen cannot show that the grand 

jury testimony to which he refers contains exculpatory evidence. Although Allen 

argues that the state was required to produce the testifying officer’s statements made 

to a grand jury under the Jencks Act, see 18 U.S.C. 3500(d) and (e)(3), we disagree. 

The Jencks Act is only applicable to a prosecution brought by the United States, and 

not the state of Ohio. State v. Newton, 11th Dist. Trumbull No., 2023-T-0050, 2024-

Ohio-402, ¶ 15, citing State v. Greer, 66 Ohio St.2d 139, 148, 420 N.E.2d 932 (1981) 

(“Ohio has not, by case law, adopted the rule embodied within the Jencks Act to the 

effect that grand jury proceedings must be made available to a defendant upon 

discovery proceedings.”). 

{¶12} Because the lower court did not abuse its discretion in denying Allen’s 

Crim.R. 33(B) motion for leave to file a new-trial motion without first holding an 

evidentiary hearing, we overrule the first assignment of error.

{¶13} Under Allen’s remaining seven assignments of error, he asserts claims 

of ineffective assistance of counsel, judicial bias, prosecutorial misconduct, the 

involuntary nature of his statement to police, and other evidentiary matters, all of 

which he argues entitle him to a new trial. Because these assignments of error address 

the merits of Allen’s delayed motion for a new trial, we may not consider them and 

decline to address them as they are not properly before us. See Bethel, 167 Ohio St.3d 

326, 2022-Ohio-783, 192 N.E.3d 470, at ¶ 41 (“[U]ntil a trial court grants leave to file 

a motion for a new trial, the motion for a new trial is not properly before the court.”). 

{¶14} In conclusion, because we have overruled Allen’s first assignment of 

error and because the remaining assignments of error are not properly before us, we 

affirm the common pleas court’s judgment denying Allen’s Crim.R. 33(B) motion for 

leave to file a new-trial motion. 

Judgment affirmed.

CROUSE and KINSLEY, JJ., concur.
OHIO FIRST DISTRICT COURT OF APPEALS

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Please note:

The court has recorded its own entry on the date of the release of this opinion.