[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., AppellantCase No. 13-19-46, 13-19-47

-2- SHAW, P.J. {¶1} Defendant-appellant, William H. Perkins, Jr. (“Perkins”), appea ls the November 5, 2019 judgment entries issued by the Seneca County C ourt of Common Pleas denying his motion for leave to file a motion for a new t rial. {¶2} In December 2008 and February 2009, Perkins was convicted of si x 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. T he motions were filed simultaneous to Perkins’ Affidavit of Disqualification, s eeking the Supreme Court of Ohio to disqualify the sitting trial judge from Perkin s’ 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 ov erruling 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 co urt erred in denying his motion for leave to file a motion for a new trial u nder Crim.R. 33. Specifically, Perkins claims that the trial court abused its di scretion 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 pr ovides, 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 upo n which the verdict was rendered, or the decision of the court wh ere trial by jury has been waived. If it is made to appear by clea r and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, suc h motion shall be filed within seven days from an order of the co urt 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 wit hin 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 fili ng 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 o rder to be able to file a motion for a new trial based on newly discovered evid ence 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 unavoid ably 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 app eal 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, a rbitrary, 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, Perki ns argues that his motion for leave should be granted because of newly di scovered 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, t hat 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 volum inous in nature and contain testimony from numerous witnesses, indicate that O’Conn ell provided brief, testimony of his nominal involvement in the execution of a sear ch 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 conclusi ons 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 fo r 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 conclusion s of law when it denies a Crim.R. 33 motion for a new trial.). Rather, courts have con sistently held that theCase 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 na ture 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 cour t’s determination that Perkins has failed to establish he is entitl ed to leave to file a motion for a new trial. Accordingly, we conclude that the tria l 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 th e Ruling for Both Leave to File a New Trial Motion and the Actual Motion for a Ne w Trial.” {¶15} For all these reasons, the assignments of error are overruled a nd the judgments of the trial court are affirmed. Judgments Affirmed PRESTON and ZIMMERMAN, J.J., concur. /jlr