[Cite as State v. Perkins, 2020-Ohio-2888.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 13-19-46 

 v. 

WILLIAM H. PERKINS, JR., O P I N I O N 

 DEFENDANT-APPELLANT. 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 13-19-47 

 v. 

WILLIAM H. PERKINS, JR., O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeals from Seneca County Common Pleas Court 

Trial Court Nos. 08 CR 0158 and 08 CR 0208 

Judgments Affirmed 

Date of Decision: May 11, 2020 

 

APPEARANCES: 

 

William H. Perkins, Jr., Appellant 
Case No. 13-19-46, 13-19-47 

-2- 

SHAW, P.J. 

{¶1} Defendant-appellant, William H. Perkins, Jr. (“Perkins”), appeals the 

November 5, 2019 judgment entries issued by the Seneca County Court of Common 

Pleas denying his motion for leave to file a motion for a new trial. 

{¶2} In December 2008 and February 2009, Perkins was convicted of six 

felonies stemming from an armed robbery of The Medicine Shoppe Pharmacy in 

Tiffin, Ohio. State v. Perkins, 3d Dist. Seneca Nos. 13-10-50, 13-10-51, 2011-Ohio3129, ¶ 2-3. 

{¶3} Perkins filed numerous appeals of his conviction and sentence. See, 

e.g., State v. Perkins, 3d Dist. Seneca Nos. 13-09-14, 13-09-15, 2009-Ohio-6722; 

State v. Perkins, 190 Ohio App.3d 328, 2010-Ohio-5058 (3d Dist.); State v. Perkins, 

3d Dist. Seneca Nos. 13-10-50, 13-10-51, 2011-Ohio-3129; State v. Perkins, 3d 

Dist. Seneca Nos. 13-15-20, 13-15-21. 

{¶4} On August 5, 2019, Perkins filed a “Motion for Leave to File a New 

Trial Motion Pursuant to Crim.R. 33(A)(2)” and a “Request for a Stay on the Ruling 

for Both Leave to File a New Trial Motion and the Actual Motion for a New Trial” 

in both trial court cases numbers 08 CR 0158 and 08 CR 0208. The motions were 

filed simultaneous to Perkins’ Affidavit of Disqualification, seeking the Supreme 

Court of Ohio to disqualify the sitting trial judge from Perkins’ cases. 
Case No. 13-19-46, 13-19-47 

-3- 

{¶5} On September 23, 2019, the Supreme Court of Ohio denied Perkins’ 

Affidavit of Disqualification. 

{¶6} On November 5, 2019, the trial court issued judgment entries overruling 

Perkins’ motions. 

{¶7} Perkins filed this appeal, asserting the following assignments of error. 

ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT ERRED IN DENYING THIS 

APPELLANT’S MOTION FOR LEAVE TO FILE A NEW 

TRIAL MOTION AND THE MOTION FOR A NEW TRIAL 

WITHOUT FINDINGS OF FACT AND CONCLUSIONS OF 

LAW VIOLATING THIS APPELLANT’S CONSTITUTIONAL 

RIGHTS TO A FAIR TRIAL AND THE DUE PROCESS OF 

LAW UNDER THE 5TH AND 14TH AMENDMENTS OF THE 

US CONSTITUTON [SIC] AND THE EQUIVALENT 

ARTICLES AND SECTIONS OF: THE OHIO 

CONSTITUTION. 

ASSIGNMENT OF ERROR NO. 2 

THE TRIAL COURT ERRED IN DENYING THE NEW TRIAL 

MOTION WHEN OTHER DEFENDANTS SIMILARLY 

SITUATED RECEIVED RELIEF BASED ON THE EXACT 

SAME CONVICTIONS FOR TAMPERING WITH EVIDENCE 

OF FORMER DETECTIVE SEAN O’CONNELL IN THE 

CASES HE INVESTIGATED LIKE THIS APPELLNTS [SIC]. 

THIS IMPROPER DENIAL WITHOUT A HEARING OR 

REASONING VIOLATED THIS APPELLANT’S 

CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW 

AND A FAIR TRIAL UNDER THE 5TH AND 14TH 

AMENDMENTS OF THE US CONSTITUTION AND THE 

EQUIVALENT ARTICLES AND SECTIONS OF THE OHIO 

CONSTITUTION AS MERIT WAS SHOWN. 
Case No. 13-19-46, 13-19-47 

-4- 

First and Second Assignments of Error 

{¶8} In these assignments of error, Perkins argues that the trial court erred in 

denying his motion for leave to file a motion for a new trial under Crim.R. 33. 

Specifically, Perkins claims that the trial court abused its discretion in denying his 

motion because the trial court failed to issue findings of fact and conclusions of law 

and failed to conduct a hearing on the motion.1

 

Relevant Law 

{¶9} Motions for a new trial are governed by Crim.R. 33(A), which provides, 

in relevant part, that a trial court may grant a new trial “[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.” Crim.R. 33(A)(6). Crim.R. 

33(B) sets forth the timing requirements for new-trial motions and provides, in 

relevant part: 

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. 

 

1

 We note that the State failed to file a brief in this matter. 
Case No. 13-19-46, 13-19-47 

-5- 

{¶10} “Accordingly, a party may not seek a new trial on the basis of newly 

discovered evidence after the 120-day time limit unless he can demonstrate that he 

was unavoidably prevented from discovering the new evidence within the time 

limit.” State v. Keith, 192 Ohio App.3d 231, 2011-Ohio-407, ¶ 39 (3d Dist.), citing 

Crim.R. 33(B). “ ‘A party is ‘unavoidably prevented’ from filing a motion for a 

new trial if the party had no knowledge of the existence of the ground supporting 

the motion and could not have learned of that existence within the time prescribed 

for filing the motion in the exercise of reasonable diligence.’ ” Id., quoting State v. 

Lee, 10th Dist. Franklin No. 05AP-229, 2005-Ohio-6374, ¶ 8. “In order to be able 

to file a motion for a new trial based on newly discovered evidence beyond the 120 

days prescribed in the above rule, a petitioner must first file a motion for leave, 

showing by ‘clear and convincing proof that he has been unavoidably prevented 

from filing a motion in a timely fashion.’” Id. at ¶ 40, quoting State v. Graham, 3d 

Dist. Hancock No. 5-05-13, 2006-Ohio-352, ¶ 10. 

{¶11} A motion for new trial under Crim.R. 33(B) is addressed to the sound 

discretion of the trial court, and will not be disturbed on appeal absent an abuse of 

discretion. State v. Ray, 3d Dist. Union No. 14-05-39, 2006-Ohio-5640, ¶ 53, citing 

State v. Farley, 10th Dist. Franklin No. 03AP-555, 2004-Ohio-1781, ¶ 6-7. An 

abuse of discretion suggests that a decision is unreasonable, arbitrary, or 

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980). 
Case No. 13-19-46, 13-19-47 

-6- 

{¶12} In his motion for leave to file a motion for a new trial, Perkins argues 

that his motion for leave should be granted because of newly discovered evidence 

of witness misconduct. In particular, Perkins claims that one of the law enforcement 

officers, Sean O’Connell (“O’Connell”), a former detective with the Fremont Police 

Department, who testified for the prosecution at Perkins’ jury trials in 2008 and 

2009, had recently been convicted of tampering with evidence in an unrelated case. 

Therefore, Perkins presumes, without any evidentiary support, that O’Connell 

provided “false testimony” during his jury trials. Notably, a review of the jury trial 

transcripts included with the record on appeal, which are voluminous in nature and 

contain testimony from numerous witnesses, indicate that O’Connell provided brief, 

testimony of his nominal involvement in the execution of a search warrant led by 

Seneca County and City of Tiffin law enforcement. 

{¶13} On appeal, Perkins argues that the trial court erred in failing to hold a 

hearing on his motion or to issue findings of fact and conclusions of law. Perkins 

does not cite to any legal authority to support his arguments To the contrary, 

Crim.R. 33 does not explicitly require a hearing on a motion for a new trial nor does 

Crim.R. 33 require a trial court to issue findings of fact and conclusions of law. See

Crim.R. 33; see also State ex rel. Collins v. Pokorny, 86 Ohio St.3d 70 (1999)(A 

trial court has no duty to issue findings of fact or conclusions of law when it denies 

a Crim.R. 33 motion for a new trial.). Rather, courts have consistently held that the 
Case No. 13-19-46, 13-19-47 

-7- 

decision to conduct a hearing is entrusted to the discretion of the trial court. See 

State v. Jalowiec, 9th Dist. Lorain No. 14CA010548, 2015-Ohio-5042, ¶ 20; State 

v. Carusone, 1st Dist. Hamilton No. C–130003, 2013-Ohio-5034, ¶ 33 (The nature 

of that hearing is discretionary with the court and depends on the circumstances.). 

Moreover, to warrant the granting of a new trial based on newly discovered 

evidence, the new evidence must disclose a “strong probability” that it will change 

the result if a new trial is granted. State v. Barton, 12th Dist. Warren No. CA2005-

03-036, 2007-Ohio-1099, ¶ 31. 

{¶14} In the instant case, we find the record supports the trial court’s 

determination that Perkins has failed to establish he is entitled to leave to file a 

motion for a new trial. Accordingly, we conclude that the trial court did not abuse 

its discretion in denying Perkins’ “Motion for Leave to File a New Trial Motion 

Pursuant to Crim.R. 33(A)(2)” and his “Request for a Stay on the Ruling for Both 

Leave to File a New Trial Motion and the Actual Motion for a New Trial.” 

{¶15} For all these reasons, the assignments of error are overruled and the 

judgments of the trial court are affirmed. 

 Judgments Affirmed 

PRESTON and ZIMMERMAN, J.J., concur. 

/jlr