[Cite as State v. Powell,
2021-Ohio-2440.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109897
v. :
CARLIN POWELL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 15, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-15-598275-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
and Mary M. Frey and Frank R. Zeleznikar, Assistant
Prosecuting Attorneys, for appellee.
Carlin Powell, pro se.
MICHELLE J. SHEEHAN, J.:
Appellant Carlin Powell appeals the trial court’s denial of his motion
for leave to file a motion for new trial. Because the evidence Powell submitted in
support of his motion for new trial demonstrated that the evidence was known or
could have been discovered with reasonable diligence prior to Powell’s sentencing
date, the trial court did not abuse its discretion denying the motion for leave to file
a motion for new trial and we affirm the trial court’s judgment.
On January 26, 2018, Powell was found guilty of one count of rape
and one count of kidnapping with a sexual motivation specification of one victim,
and corruption of a minor of another victim. He was also found guilty of sexually
violent predator specifications. The trial court journalized the guilty verdicts on
January 29, 2018. On May 14, 2018, Powell was sentenced to an aggregate prison
term of ten and one-half years. His convictions were affirmed on appeal to this
court. State v. Powell, 2019-Ohio-4345,
134 N.E.3d 1270 (8th Dist.). An account of
the facts presented at trial is set forth in our opinion affirming Powell’s convictions.
Id. at ¶ 3-33. We denied Powell’s application to reopen the appeal. State v. Powell,
8th Dist. Cuyahoga No. 107276,
2020-Ohio-3887.
Within his direct appeal, Powell argued that the court improperly
allowed serology evidence in the form of a lab report, that the prosecutor engaged in
misconduct by referencing an alleged third victim of sexual abuse, and that he
received ineffective assistance of counsel by failing to seek severance of the several
charges and by failing to renew a motion to dismiss the charges based upon
preindictment delay. Powell, 2019-Ohio-4345.
On March 31, 2020, 792 days after the trial court’s journal
memorialized the verdicts, Powell filed a pro se motion for leave to file a motion for
new trial. Within his motion for leave, he alleged prosecutorial and witness
misconduct. Powell attached the following documents to his motion for leave:
An affidavit from Willie Powell, dated March 16, 2020;
Exhibits A1-3, Five pages of apparent internet printouts
detailing film festival dates and broadcast dates for an HBO
documentary, I Am Evidence;
Exhibits B1-4, BCI Lab Report dated September 11, 2015, two
printed pages of a Cleveland Plain Dealer article dated April 3,
2014;
Exhibit C, Two pages of transcript from Powell’s trial, North
Carolina Department of Public Safety Correspondence to Carlin
Powell dated August 1, 2016 and attachment;
Exhibit D, Two pages of Powell’s trial transcript; and
Exhibit E, Two pages of Powell’s trial transcript.
Powell attached the affidavit from his brother Willie Powell in order
to explain when they discovered information about the documentary. Willie Powell
averred that he viewed the HBO documentary, I am Evidence, on March 6, 2020.
He stated that he then discovered the documentary “was first presented on April 24,
2017, at the ‘Tribeca Film Festival’ in New York,” and informed Carlin Powell of this
fact.
Exhibits A1-3 are copies of emails sent to Powell that include images
of an unidentified website indicating that the documentary I am Evidence was an
official selection of the 2017 Tribeca Film Festival and that the documentary had
won awards at two other festivals. The information further notes that the
documentary would not be released to the public until “April.” Exhibit A4 is another
email that includes a screenshot of a website, wearemoviegeeks.com, with a headline
dated October 18, 2017, indicating that the documentary would appear on
November 18 at the St. Louis International Film Festival. Exhibit A5 is an email of
a screenshot indicating that the website IMDb has a listing of the documentary.
In his motion, Carlin Powell alleged that the documentary was
created and released prior to his trial and is newly discovered evidence. He further
argued that creation of the documentary before his trial supports his claims of
witness and prosecutorial misconduct.
In the state’s brief in opposition to the motion for leave, it argued that
Powell was aware of the documentary at his trial in January 2018. It notes that
Powell’s counsel argued that one of the victims was not credible because she knew
that she was being filmed for the documentary during an interview with an
investigator. Further, the state noted that the information about the documentary
submitted in the internet printouts marked as Exhibits A1-5 was available online in
April 2018, after Powell’s trial but before his sentencing. The state further noted
that the BCI lab report and Plain Dealer articles marked as Exhibit B were available
before P0well’s trial and that the information contained in the remaining exhibits
were available at trial.
On July 16, 2020, the trial court denied the motion for leave without
hearing. Powell now raises two assignments of error, which will be addressed
together. His first assignment of error reads:
The trial court abused its discretion when it failed to grant Powell’s
motion for leave to file a motion for new trial when the record
demonstrated by clear and convincing proof that Powell was
unavoidably prevented from discovering the new evidence and
presented to the court within a reasonable time following its
discovery.
His second assignment of error reads:
The trial court abused its discretion when it failed to hold a hearing
on Powell’s motion for leave to file a motion for new trial when the
record and circumstances supported Powell’s claim that he was
unavoidably prevented from discovering the evidence at issue, and
where the evidence support a potential Brady violation as well as a
Crim.R. 16 violation.
Crim.R. 33 governs the procedure for filing a motion for new trial.
Crim.R. 33(B) 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.
Accordingly, where the evidence used in support of the motion is
discovered after 120 days, a defendant must demonstrate that he was unavoidably
prevented from discovery of that evidence. “[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.”
State v. Walden, 19 Ohio App.3d 141, 145-146,
483 N.E.2d 859 (10th Dist.1984).
A defendant seeking leave to file a motion for new trial must show by
clear and convincing proof that he was unavoidably prevented from filing his
motion. State v. Bridges, 8th Dist. Cuyahoga Nos. 103634 and 104506, 2016-Ohio-
7298, ¶ 20. A mere allegation that the evidence could not be found is not sufficient
to show that that the evidence could not be discovered in a “timely manner.” Id.
Further, a defendant who makes no effort to discover evidence cannot claim that he
was unavoidably prevented from so doing. State v. Jackson, 8th Dist. Cuyahoga
No. 108241,
2019-Ohio-4893, ¶ 19-20, citing State v Cashin, 10th Dist. Franklin No.
17AP-338,
2017-Ohio-9289.
We review the denial of a motion for leave to file a motion for new
trial for an abuse of discretion. Cowan at ¶ 12. An abuse of discretion has been
defined as an attitude that is unreasonable, arbitrary, or unconscionable. State v.
Phillips, 2017-Ohio-7164,
95 N.E.3d 1017, ¶ 21 (8th Dist.) In this case, the trial court
denied the motion for leave to file without a hearing. “The trial court's decision
whether to hold an evidentiary hearing on a defendant’s request for leave to file a
delayed motion for new trial is also reviewed for an abuse of discretion.”
Id., citing
State v. Hill, 8th Dist. Cuyahoga No. 102083,
2015-Ohio-1652, ¶ 16.
Powell argues that the trial court abused its discretion by denying him
leave to file a motion for new trial because he was incarcerated and did not have
access to media or the internet while in prison to discover more information about
the documentary. The state argues that the trial court properly denied leave because
it is apparent that the evidence and exhibits Powell submitted to support his motion
for leave could have been discovered within the 120-day time period set forth in
Crim.R. 33(B).
Powell’s trial was concluded on January 26, 2018. The verdict was
journalized by the court on January 29, 2018. The 120-day time period pursuant to
Crim.R. 33(B) therefore expired May 29, 2018. The evidentiary materials Powell
presented in support for his motion for leave to file in Exhibits A1-5 demonstrate
that they were available in April 2018 when the documentary was shown on HBO,
prior to his sentencing on May 14, 2018. Further, the rest of the materials Powell
submitted with his motion for leave were dated either before trial or were transcripts
from the trial. As such, these facts were known prior to the expiration of the 120-
day time limit in Crim.R. 33(B).
Powell and his counsel knew that the documentary existed. Any
reasonable diligence would have discovered the availability of the documentary
prior to the expiration of the time limit set forth in Crim.R. 33(B). Accordingly, we
cannot say that Powell was unavoidably prevented from filing a motion for new trial
based on the existence of or the contents of the documentary within the 120-day
time limit and the trial court did not abuse its discretion by denying the motion for
leave without hearing. Powell’s assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
____________________________
MICHELLE J. SHEEHAN, JUDGE
MARY J. BOYLE, A.J., and
ANITA LASTER MAYS, J., CONCUR
