[Cite as State v. Dawson, 2011-Ohio-2773.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NO. 09 MA 209 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

WILLIAM T. DAWSON, JR. ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Mahoning County, 

Ohio 

Case No. 87 CR 458 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Paul J. Gains 

Mahoning County Prosecutor 

Atty. Ralph M. Rivera 

Assistant Prosecuting Attorney 

21 West Boardman Street, 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant: William T. Dawson, Jr., Pro se 

#200-473 

Belmont Correctional Institution 

P.O. Box 540 

St. Clairsville, Ohio 43950 

JUDGES: 
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Hon. Cheryl L. Waite 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

Dated: June 2, 2011 

WAITE, P.J. 

{1} Appellant William T. Dawson, Jr., is appealing the judgment of the 

Mahoning County Court of Common Pleas denying him leave to file a motion for new 

trial. Appellant was convicted of murdering Youngstown Police Officer Paul Durkin in 

1987, and he was sentenced to 18 years to life in prison. The jury trial conviction and 

sentence were upheld on appeal to this Court. State v. Dawson (June 29, 1990), 7th 

Dist. No. 87 C.A. 194. 

{2} On October 12, 2007, Appellant filed a motion seeking leave to file a 

motion for new trial. In this motion, Appellant also asks that counsel and an 

investigator be appointed, and for exhumation. Appellant wants to exhume the body 

of his victim hoping he will find evidence to support a theory of self-defense. The 

state responded to his motion. On November 18, 2009, the trial court filed a 

judgment entry overruling the motion. This timely appeal followed. Appellant has 

filed his briefs to this Court pro se. 

{3} According to Crim.R. 33, a motion for new trial must be filed within 14 

days or 120 days of the verdict, depending on the reason for the request. If such 

motion is filed late, the defendant must seek leave to file and must first prove that he 

was unavoidably prevented from filing his motion for new trial. Appellant did not 

allege or prove that he was unavoidably prevented from filing his motion. For this 
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reason, alone, the trial court was correct in denying the motion for leave. 

Additionally, Appellant failed to provide any proof in support of his motion. Crim.R. 

33(C) requires the defendant to support his motion with proof in the form of affidavits. 

Since Appellant supplied only his own conjecture rather than proof, there is a second 

reason the motion was properly denied. Hence, the judgment of the trial court is 

affirmed. 

ASSIGNMENT OF ERROR

{4} “THE TRIAL COURT COMMITTED SOME KIND OF ERROR [PLAIN 

OR REVERSIBLE AND/OR SOME OTHER] AND/OR ABUSED ITS’ DISCRETION, 

WHEN IT OVERRULED APPELLANTS’ MOTION FOR LEAVE TO FILE A MOTION 

FOR NEW TRIAL AND OTHER REQUESTS’, WITHOUT HAVING RULED UPON 

THE MOTION TO EXHUME, IN VIOLATION OF HIS RIGHT TO NOT BE DEPRIVED 

OF HIS LIBERTY, WITHOUT DUE PROCESS OF LAW, UNDER THE 

FOURTEENTH AMENDMENT, TO THE UNITED STATES CONSTITUTION, AND 

THROUGH THE SAME, AND ARTICLE ONE, SECTION SIXTEEN, OF THE OHIO 

CONSTITUTION. [sic]” 

{5} Appellant argues that he submitted a 160-page memorandum to the 

trial court explaining why he should not have been convicted of murder, and that this 

should have been sufficient for the trial court to grant him leave to file a motion for 

new trial. Appellant admitted in this memorandum that he owned a 22-caliber 

handgun and shot Officer Durkin with it, but he alleges that the shooting occurred in 

self-defense during an altercation outside of Officer Durkin’s police cruiser. The 
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evidence submitted at his murder trial indicated that Durkin was shot while seated in 

his cruiser. The theory on which Appellant bases his new trial request is that 

practically everyone involved in the original trial conspired to suppress facts that 

would have shown that Officer Durkin was shot in his left arm in such a way that the 

shooting could not have occurred while he was seated in the police cruiser. 

According to Appellant, if Officer Durkin was shot while outside the cruiser, then at 

least the possibility exists that he shot the officer in self-defense. Thus, Appellant 

argues that Officer Durkin’s body should be exhumed to establish that the state 

improperly withheld or suppressed exculpatory evidence (supporting a theory of selfdefense) in violation of Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 

L.Ed.2d 215. Appellant believes that under Brady, he should have told the trial court 

that the evidence he wanted to rely on was materially exculpatory rather than only 

potentially exculpatory. Appellant believes his motion was overruled due to this error, 

and that his alleged error should have been excused because he is a pro se litigant. 

{6} In Brady, the United States Supreme Court held, “the suppression by 

the prosecution of evidence favorable to an accused upon request violates due 

process where the evidence is material either to guilt or to punishment, irrespective of 

the good faith or bad faith of the prosecution.” Id. at 87. Evidence is “material” only if 

there is a reasonable probability that the proceeding would have turned out differently 

had the evidence been disclosed to the defense. United States v. Bagley (1985), 

473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481. “A successful Brady claim 

requires a three-part showing: (1) that the evidence in question be favorable; (2) that 
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the state suppressed the relevant evidence, either purposefully or inadvertently; (3) 

and that the state's actions resulted in prejudice.” State v. Davis, 5th Dist. No. 2008-

CA-16, 2008-Ohio-6841, ¶53, citing Strickler v. Greene (1999), 527 U.S. 263, 281-

282, 119 S.Ct. 1936, 144 L.Ed.2d 286. The defendant must prove that the Brady

violation rises to the level of denial of due process. State v. Jackson (1991), 57 Ohio 

St.3d 29, 33, 565 N.E.2d 549. 

{7} In Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 333, 102 

L.Ed.2d 2, the United States Supreme Court clarified the Brady ruling by holding that 

“[t]he possibility that [evidentiary material] could have exculpated [the defendant] if 

preserved or tested is not enough to satisfy the standard of constitutional materiality.” 

Id. at 56. “A clear distinction is drawn by Youngblood between materially exculpatory 

evidence and potentially useful evidence. If the evidence in question is not materially 

exculpatory, but only potentially useful, the defendant must show bad faith on the 

part of the state in order to demonstrate a due process violation.” State v. Geeslin, 

116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, ¶10. 

{8} Appellant now argues on appeal that the evidence he hopes to find is 

materially exculpatory, but he acknowledges that he did not actually make this 

argument to the trial court. This, alone, is reason enough to affirm the trial court’s 

decision, because arguments that should have been presented to the trial court will 

not be considered for the first time on appeal. State v. Garrett, 7th Dist. No. 06BE67, 

2007-Ohio-7212, ¶8. Appellant argues that he should be given some leeway 

because he is not an attorney and did not know the law well enough to make a 
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proper argument to the trial court. This is not a persuasive argument because “a 

defendant's knowledge of the law is not part of an analysis under Crim.R. 33(B)”. 

State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶25. 

{9} Appellee, in response, argues that in any event, Appellant’s motion for 

a new trial was untimely pursuant to Crim.R. 33(B). Due to this untimeliness, 

Appellant was required to prove by clear and convincing evidence that he was 

unavoidably prevented from filing his motion for new trial as a threshold matter. 

Appellee contends that because Appellant has failed to assert, address or prove that 

he was unavoidably prevented from filing a timely motion for new trial, the motion for 

leave was properly dismissed. Appellee also argues that Appellant has failed to 

establish that any evidence, whether materially exculpatory or not, was withheld from 

the defense. Appellee submits that Appellant only speculates about the evidence 

and his own theory of what it might possibly show rather than provide some proof that 

any evidence was suppressed. 

{10} Appellee’s arguments are correct. Crim.R. 33 sets up a strict time 

frame for filing motions for a new trial, and Appellant did not meet those deadlines. 

Crim.R. 33 states, in pertinent part: 

{11} “(A) Grounds. A new trial may be granted on motion of the defendant 

for any of the following causes affecting materially his substantial rights: 

{12} “(1) Irregularity in the proceedings, or in any order or ruling of the court, 

or abuse of discretion by the court, because of which the defendant was prevented 

from having a fair trial; 
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{13} “(2) Misconduct of the jury, prosecuting attorney, or the witnesses for 

the state; 

{14} “* * * 

{15} “(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. When a motion for a new trial is made upon the ground of newly discovered 

evidence, the defendant must produce at the hearing on the motion, in support 

thereof, the affidavits of the witnesses by whom such evidence is expected to be 

given, and if time is required by the defendant to procure such affidavits, the court 

may postpone the hearing of the motion for such length of time as is reasonable 

under all the circumstances of the case. The prosecuting attorney may produce 

affidavits or other evidence to impeach the affidavits of such witnesses. 

{16} “(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. 

{17} “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 
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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. 

{18} “(C) Affidavits required. The causes enumerated in subsection (A)(2) 

and (3) must be sustained by affidavit showing their truth, and may be controverted 

by affidavit.” (Emphasis added.) 

{19} Appellant has alleged two basic theories for seeking a new trial: 

prosecutorial misconduct in suppressing exculpatory evidence; and newly discovered 

evidence. Motions for new trial based on prosecutorial misconduct or for 

irregularities in the trial must be filed within 14 days of the verdict. Crim.R. 33(B). A 

motion for new trial based on newly discovered evidence must be filed within 120 

days of the verdict. Crim.R. 33(B). Appellant’s filings were submitted nearly 20 years 

after the verdict was rendered. Before a trial court can reach the merits of an 

untimely motion for new trial, it must first grant leave to the defendant to file a motion 

for new trial. Thus, the proper procedure for a defendant to follow after the Crim.R. 

33 time limits have expired is to file a motion seeking leave to file a motion for new 

trial, and then, only after the motion for leave is granted, to file the motion for new trial 

within seven days. State v. Walden (1984), 19 Ohio App.3d 141, 145-146, 483 

N.E.2d 859. 
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{20} We review a Crim.R. 33(B) motion under an abuse of discretion 

standard. State v. Pinkerman (1993), 88 Ohio App.3d 158, 160, 623 N.E.2d 643; 

State v. Shakoor, 7th Dist. No. 10 MA 64, 2010-Ohio-6386, ¶17. Unless we find that 

the trial court's attitude was unreasonable, arbitrary or unconscionable, we must 

affirm the court's decision. State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 

N.E.2d 144. 

{21} Appellant’s claims were filed well outside either the 14- or 120-day 

period for filing a motion for new trial. Therefore, he was required to obtain leave of 

court to file his motion for new trial. State v. Lordi, 149 Ohio App.3d 627, 2002-Ohio5517, 778 N.E.2d 605, ¶25. In order to obtain this leave, Appellant was required to 

prove, by clear and convincing evidence, that he was unavoidably prevented from 

filing a timely motion. Crim.R. 33(B). The only issue before the trial court in ruling on 

a motion for leave to file is whether the defendant was unavoidably prevented in filing 

a timely motion for new trial. Walden, supra, 19 Ohio App.3d at 145, 483 N.E.2d 859. 

{22} “[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.” 

Id. at 145-146. 

{23} Appellant did not allege, much less try to support in an affidavit or any 

other type of proof, that he was unavoidably detained from filing a motion for new 

trial. Without such proof, the trial court could not have granted him leave to file a 
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delayed motion for a new trial. Appellant relies on mere conjecture rather than proof, 

and mere conjecture does not constitute evidence in support of a motion for new trial 

under Crim.R. 33, or a motion for leave to file such a motion. State v. Gillispie, 2d 

Dist. Nos. 22877, 22912, 2009-Ohio-3640, ¶58; State v. Smith, 7th Dist. No. 06 BE 

22, 2008-Ohio-1670, ¶69. 

{24} Further, Appellant obviously has been aware of the grounds he now 

alleges in support of his motion for a new trial. The main thrust of his argument is 

that possibly he will be able to prove self-defense if the body of the victim is exhumed 

and additional bullet wounds are found, bullet wounds that Appellant admits that he 

inflicted in 1987. If Appellant did shoot the victim more times than were presented at 

his murder trial, he certainly knew about the existence of, or at least the possibility of, 

these additional wounds long before the expiration of his time for filing a motion for 

new trial. In fact, Appellant would have known about the potential evidence from the 

moment the crime was committed, because he readily states that he inflicted all the 

gunshot wounds to Officer Durkin. As Appellant was clearly aware of the grounds for 

obtaining a new trial but did nothing about it, he cannot be said to have been 

unavoidably prevented from filing such motion. 

{25} Even if Appellant had alleged unavoidable delay, he was still required to 

file his motion for leave within a reasonable period of time after discovery of the 

evidence that he believes warrants a new trial. State v. Elersic, 11th Dist. No. 2007-

L-104, 2008-Ohio-2121, ¶20; State v. Newell, 8th Dist. No. 84525, 2004-Ohio-6917, 

¶16. It is not at all clear from Appellant’s filings when he came to the conclusion that 
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the victim’s body might contain additional evidence in his favor, but it certainly cannot 

be considered reasonable to wait 20 years to bring this issue to the attention of the 

court. 

{26} Neither the trial court nor this Court may address the actual merits of 

Appellant’s motion for new trial until first establishing that leave should be granted to 

file his motion. Although Appellee attempts to also address the merits of the motion 

for a new trial, no motion for new trial is properly filed. The only issue properly on 

appeal is whether the trial court erred in overruling the motion for leave. Appellant 

did not present any evidence in support of his motion for leave. More to the point, it 

is clear from Appellant’s own argument that he was not unavoidably prevented from 

filing a timely motion for new trial. Therefore, the trial court correctly overruled the 

motion for leave. Appellant’s sole assignment of error is overruled and the judgment 

of the trial court is affirmed. 

Vukovich, J., concurs. 

DeGenaro, J., concurs.