COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73499 STATE OF OHIO : : ACCELERATED DOCKET PLAINTIFF-APPELLEE : : JOURNAL ENTRY vs. : : AND DONALD L. RICHARD, SR. : : OPINION DEFENDANT-APPELLANT : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: MAY 7, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-215283. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ________________________________ APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Arthur A. Elkins Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Darrell D. Tyburski, Esq. 410 Leader Building Cleveland, Ohio 44114 Donald L. Richard, Sr., pro se Inmate #A197-168 Lorain Correctional Institution 2075 South Avon Belden Road Grafton, Ohio 44044 -2- PER CURIAM: An ccelerated appeal is authorized pursuant to App.R. 11. and Loc.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). A review of the record on appeal indicates that defendant- ppellant Dona 1a 1950, appeals from the trial court's denial of his October, 1997 motion for leave to file a delayed motion for new trial pursuant to Crim.R. 33(B). For the reasons adduced below, we affirm. The leave motion at issue relates to appellant's most recent attempt to obtain a new trial on 1987 convictions for Murder (R.C. 2903.02) and Having a Weapon While Under a Disability (R.C. 2923.13), which were affirmed in State v. Richard (October 20, 1988), Cuyahoga App. No. 54228, unreported1, leave to appeal overruled on November 12, 1992 in Ohio Supreme Court case number 92-1245. A copy of appellate case 54228 is attached to appellee's brief. Appellant is currently serving a term of fifteen years to life on the Murder conviction consecutive to a term of three to 1Incidentally, appellant is also serving a twelve to fifteen year term of imprisonment for Felonious Assault with firearm and aggravated felony specifications unrelated to his Murder conviction. See this court's affirmance in State v. Richard (June 16, 1988), Cuyahoga App. No. 54040, unreported. There is also a lengthy trail of unsuccessful writs of habeas corpus and mandamus actions, post-conviction relief attempts, and other civil actions against government authorities associated with his criminal proceedings and retention/provision of records, by Mr. Richard. One of these unsuccessful attempts was the affirmance of the denial of appellant's first motion for new trial on his Murder conviction in State v. Richard (December 5, 1991), Cuyahoga App. No. 61730, unreported, a copy of which is attached to appellee's brief. -3- five years on the Weapons Disability conviction, plus three years actual on a firearm specification. The record further discloses that the instant leave motion was filed on October 3, 1997, and contained legal argument and affidavits of the appellant, Mr. Scott Gallagher (a fellow prisoner at appellant's prison who was a prosecution witness in the appellant's Murder trial), and Mr. Michael Viccaro (a cell-mate of inmate Gallagher who allegedly overheard conversations between appellant and inmate Gallagher). Generally, the motion and their supporting affidavits alleged the following: (1) that inmate Gallagher, while incarcerated at the Lorain Correctional facility, informed the appellant in September of 1997 that Gallagher's trial testimony was a total fabrication and that he perjured himself at the insistence of the prosecutor's office and the police detective assigned to the case, who had told him what to say on the witness stand; (2) that Gallagher knew that an eyewitness to the crime and girl friend of the victim, Ms. Kimberly Sarkozy (who testified at the trial that while she watched outside the bar she saw Mr. Richard shoot the victim), was inside the bar at the time of the shooting with him, not outside the bar as she testified, and could not have observed the shooting as she had testified. The trial court, without opinion or oral hearing, denied the subject leave motion and delayed motion for new trial on November 3, 1997. This accelerated appeal followed presenting a lone assignment of error: THE TRIAL COURT ERRED, AND/OR ABUSED ITS DISCRETION TO APPELLANT'S PREJUDICE WHEN IT IMPROPERLY DENIED APPELLANT'S MOTION FOR LEAVE TO FILE A DELAYED MOTION FOR NEW TRIAL PURSUANT TO CRIM.R. 33(B) IN VIOLATION OF -4- APPELLANT'S RIGHTS PROTECTED UNDER THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION. Crim.R. 33 establishes the procedure governing motions for new trial. Appellant's current motion for new trial has alleged newly discovered evidence as the basis for the motion pursuant to Crim.R. 33(A)(6). Crim.R. 33(B) establishes time limitations for the filing of such motions depending on the grounds asserted for a new trial. Motions seeking a new trial based upon newly discovered evidence must be filed within one hundred and twenty (120) days of the verdict unless the trial court makes a determination to extend the time period by leave of court. To grant leave to file a belated motion, the trial court must find by clear and convincing proof that defendant was unavoidably prevented from filing the motion within the applicable time period. Crim.R. 33(B). In addressing the review of a motion for new trial ruling, we note the following: In order to grant a Crim.R. 33 motion for new trial, it must be shown that newly discovered evidence upon which the motion is based: `(1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.' State v. Petro (1947), 148 Ohio St. 505, 36 O.O. 165, 76 N.E.2d 370, syllabus. -5- The Supreme Court in Petro further noted that: `The granting of a motion for new trial upon the ground named [newly discovered evidence] is necessarily committed to the wise discretion of the court, and a court of error cannot reverse unless there has been a gross abuse of that discretion. And whether that discretion has been abused must be disclosed from the entire record.' Id. At 507-508, 36 O.O. at 166, 76 N.E.2d at 372, quoting State v. Lopa (1917), 96 Ohio St. 410, 411, 117 N.E. 319, 320. State v. Bell (1996), 112 Ohio App.3d 473, 477, 679 N.E.2d 44, discretionary appeal not allowed in (1996), 77 Ohio St.3d 1487, 673 N.E.2d 146. As provided in State v. Bradley (Cuyahoga, 1995), 101 Ohio App.3d 752, 758-759: ***. Recantation of prior testimony by an important witness for the state is not, by itself, grounds for a new trial. State v. Kicak (App.1959), 83 Ohio Law Abs. 289, 291, 168 N.E.2d 768, 770; State v. Seiber (Sept. 2, 1993), Cuyahoga App. No. 63717, unreported, 1993 WL 335432. A witness prone to changing his testimony is looked upon with the utmost suspicion and must be viewed with strict scrutiny. State v. Curnutt (1948), 84 Ohio App. 101, 109-111, 39 O.O. 120, 84 N.E.2d 230, 234-235; Seiber, supra. Also see State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54, cert. denied (1990), 111 S.Ct. 1584; State v. Pirman (1994), 94 Ohio App.3d 203, 640 N.E.2d 575; State v. Edwards (Oct. 16, 1997), Cuyahoga App. No. 70985, unreported, 1997 WL 638817. Lastly, the trial court, when faced with recanted testimony, must make two determinations when considering the original -6- testimony of the witness and the recanted testimony of that witness: (1) which of the contradictory testimony offered by the witness is credible and true, and if the recanted testimony is to be believed; (2) would the evidence materially affect the outcome of the trial. Toledo v. Easterling (1985), 26 Ohio App.3d 59, 498 N.E.2d 198." State v. Stansberry (October 9, 1997), Cuyahoga App. No. 71004, unreported, at 4, 1997 WL 626063, at 5. Assuming that the appellant met his burden by clear and convincing evidence that he was unavoidably prevented from filing his motion for new trial within the statutory time period, the merits of the motion for new trial dictate that the motion be denied. In reviewing the record provided by appellant2 (which consists of the trial court file and the papers, motions and orders therein), and the recitation of facts contained in the opinions of this court which affirmed his original conviction of Murder and the denial of his first motion for new trial (see Cuyahoga App. Nos. 54228 and 61730), certain testimony is relevant. First, Miss Sarkozy testified that she was outside the bar at the time of the shooting and observed appellant shoot her boyfriend, Mr. Baldwin. Ms. Wanda Dingess, the owner of the bar, testified that Miss Sarkozy ran into the bar immediately after the shooting and screamed that Richard had shot Baldwin. The defense put on no evidence during the Murder trial, resting after the prosecution had rested. Mr. Gallagher testified at trial that he observed portions of the altercation between appellant's son and the victim leading 2Appellant has neglected to file with the court a copy of his 1987 trial transcript. -7- up to the incident from inside the bar, saw the son loading a handgun in the street and the appellant rush over to grab the son's arm, but he did not observe the actual shooting because the door to the bar closed depriving him of his view of the street from inside the bar. Given the testimony of Miss Sarkozy and Ms. Dingess placing Miss Sarkozy outside the bar at the time of the shooting, the averments of Mr. Gallagher to the contrary at this late date do not demonstrate under the first element of Petro a strong probability that the result of the trial would be different if a new trial were to be granted. Accordingly, the trial court did not abuse its discretion in denying the motion for new trial on its merits without an evidentiary hearing. Assignment overruled. Judgment affirmed. -8- It is ordered that appellee recover of appellant its 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ______________________________ TIMOTHY E. McMONAGLE, P.J. ______________________________ JAMES D. SWEENEY, J. ______________________________ MICHAEL J. CORRIGAN, J. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .