[Cite as State v. Knowlton,
2024-Ohio-5869.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2024-A-0054
Plaintiff-Appellee,
Civil Appeal from the
- vs - Court of Common Pleas
SHANE PATRICK KNOWLTON, SR.,
Trial Court No. 2021 CR 00355
Defendant-Appellant.
OPINION
Decided: December 16, 2024
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Mark Majer, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Shane Patrick Knowlton, Sr., pro se, PID# A801-977, Correctional Reception Center,
11271 State Route 762, P.O. Box 300, Orient, OH 43146 (Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Shane Patrick Knowlton, Sr., appeals from the
judgment of the Ashtabula County Court of Common Pleas, denying his postconviction
petition and request for leave to file a motion for a new trial. For the following reasons,
we affirm the judgment of the lower court.
{¶2} On August 17, 2021, Knowlton was indicted by the Ashtabula County Grand
Jury for Felonious Assault, a felony of the second degree, in violation of R.C.
2903.11(A)(2) and an accompanying firearm specification.
{¶3} A jury trial was held at which testimony was presented that Knowlton and
another man, Ryan McBride, engaged in a dispute through text messages. After the two
discussed fighting, McBride drove to Knowlton’s location, handed a gun to his friend, and
then approached Knowlton. Knowlton fired his gun and hit McBride multiple times. The
jury found Knowlton guilty of Felonious Assault and the firearm specification. The court
sentenced Knowlton to serve an indefinite sentence of four to six years in prison for
Felonious Assault and a three-year consecutive term for the firearm specification.
{¶4} Knowlton appealed to this court. State v. Knowlton, 2023-Ohio-3759 (11th
Dist.). On appeal, Knowlton’s counsel assigned error relating to whether his conviction
was supported by the weight of the evidence and this court affirmed his conviction. Id. at
¶ 17-26. This court subsequently overruled his motions to reopen and for reconsideration.
{¶5} Knowlton filed a Request for Leave to File Motion for New Trial on April 8,
2024, and a Petition to Vacate and/or Set Aside Judgment of Conviction on April 16, 2024,
raising various issues with the prosecutor’s and defense counsel’s actions at trial. The
trial court denied these motions in a May 20, 2024 Judgment Entry. It found the following:
[The] Defendant has not presented sufficient credible supporting
evidence to warrant an evidentiary hearing on his petition. This
judge is the same judge that presided over the Defendant’s original
trial. The Defendant was given court-appointed counsel for both his
trial and his appeal. Further, the Ohio Supreme Court denied review
of this matter.
Now the Defendant is seeking essentially a fourth bite-at-the apple.
All of the information that the Defendant now submits to this Court
was available to him at the time he filed his appeal. With the
exception that the Defendant wants this Court to unseal the Grand
Jury Transcripts from his case, which this Court will not do. None
of the facts the Defendant now raises were contained in the
Defendant’s appeal, and this argument is not based on newly
discovered evidence.
{¶6} Knowlton timely appeals and raises the following assignments of error:
2
Case No. 2024-A-0054
{¶7} “1. The trial court deprived Appellant of his right to due process under the
Fourteenth Amendment by failing to make adequate findings of fact and conclusions of
law before denying Appellant’s Petition for Post-Conviction Relief Motion as required by
R.C. 2953.21.
{¶8} “2. The trial court erred by failing to hold a hearing on the Appellant’s Petition
for Post-Conviction Relief.
{¶9} “3. The trial court abused its discretion by denying defendant’s motion for
leave to file a motion for new trial without a hearing.
{¶10} “4. The defendant’s Constitutional rights to due process afforded by the
Fifth, Sixth and Fourteenth Amendments to the United States Constitution were violated
by the ineffective assistance of trial counsel.
{¶11} “5. The defendant’s Constitutional rights to due process afforded by the
Fifth, Sixth and Fourteenth Amendments to the United States Constitution were violated
by the prosecutorial misconduct.
{¶12} “6. The trial court erred by failing to instruct the jury on the inferior offense
of Aggravated Assault where serious provocation was present.”
{¶13} Knowlton’s first two assignments of error relate to the denial of his
postconviction petition.
{¶14} “A person . . . may file a petition in the court that imposed sentence, stating
the grounds for relief relied upon, and asking the court to vacate or set aside the judgment
or sentence . . . who has been convicted of a criminal offense . . . and who claims that
there was such denial or infringement of the person’s rights as to render the judgment
void or voidable under the Ohio Constitution or the Constitution of the United
3
Case No. 2024-A-0054
States.” R.C. 2953.21(A)(1)(a)(i). “Before granting a hearing . . ., the court shall
determine whether there are substantive grounds for relief. In making such a
determination, the court shall consider, in addition to the petition, the supporting affidavits,
and the documentary evidence, [and] all the files and records pertaining to the
proceedings against the petitioner. . . .” R.C. 2953.21(D). “Unless the petition and the
files and records of the case show the petitioner is not entitled to relief, the court shall
proceed to a prompt hearing on the issues. . . .” R.C. 2953.21(F).
{¶15} Courts of appeal “review a decision to grant or deny a petition for
postconviction relief, including the decision whether to afford the petitioner a hearing,
under an abuse-of-discretion standard.” State v. Hatton, 2022-Ohio-3991, ¶ 38.
“However, if a trial court denies a petition on legal grounds, e.g., by application of the
doctrine of res judicata, this court’s review is de novo.” State v. Davies,
2017-Ohio-7961,
¶ 12 (11th Dist.).
{¶16} In his first assignment of error, Knowlton argues that the lower court “failed
to make adequate findings of fact and conclusions of law as required by R.C. 2953.21(D),”
and did not make specific findings to support the denial of each individual claim raised in
his postconviction petition.
{¶17} R.C. 2953.21(D) provides: “If the court dismisses the [postconviction]
petition, it shall make and file findings of fact and conclusions of law with respect to such
dismissal.” “R.C. 2953.21 requires the trial court to consider the allegations of the petition
for postconviction relief and the particular facts upon which the petitioner bases his claim;
if, upon such consideration, the trial court finds no grounds for a hearing, the court is
required to make and file findings of fact and conclusions of law as to the reasons for the
4
Case No. 2024-A-0054
dismissal and as to the grounds for relief relied upon in the petition.” State v. Lester, 41
Ohio St.2d 51 (1975), paragraph two of the syllabus. “A trial court . . . issues proper
findings of fact and conclusions of law where such findings are comprehensive and
pertinent to the issues presented, where the findings demonstrate the basis for the
decision by the trial court, and where the findings are supported by the evidence.” State
v. Calhoun,
86 Ohio St.3d 279 (1999), paragraph three of the syllabus.
{¶18} “The obvious reasons” for mandating findings are “to apprise petitioner of
the grounds for the judgment of the trial court and to enable the appellate courts to
properly determine appeals in such a cause.” (Citations omitted.) Id. at 291; State ex rel.
Carrion v. Harris,
40 Ohio St.3d 19 (1988) (findings and conclusions allow a petitioner to
make a “reasoned appeal” and for “meaningful judicial review”). The findings of fact and
conclusions of law “‘need not discuss every issue raised by appellant or engage in an
elaborate and lengthy discussion’” but “only be comprehensive and pertinent to the issues
presented in the petition and provide a basis of support for the court’s conclusion.” State
v. Rose,
2024-Ohio-5053, ¶ 22 (11th Dist.), citing
Calhoun at 291.
{¶19} The Ohio Supreme Court has held that findings similar to those made in the
present case are sufficient to satisfy the requirements to make findings of fact and
conclusions of law in dismissing a postconviction petition. Carrion at 19-20. It found this
to be the case when the trial court included the following language in its judgment entry:
“Petition for post-conviction relief denied on the basis of res judicata” since “[a]ll of the
issues in Defendant’s petition were or could have been raised in Defendant’s direct
appeal wherein the Court of Appeals found that the Defendant understood the
consequences of his plea.”
Id. at 19. Also State ex rel. Parker v. Russo,
2012-Ohio-541,
5
Case No. 2024-A-0054
¶ 1 (entry denying a petition on the grounds that the “claims are barred under the doctrine
of res judicata, which claims could have or have been raised on direct appeal” contained
“sufficient findings and conclusions to apprise [defendant] of the grounds for the judgment
and to allow appellate courts to properly determine any appeal therefrom”). Similarly, this
court rejected the argument that there were no findings of fact and conclusions of law
where the court found that, upon reviewing the evidence, the petitioner’s “claims are
barred by res judicata” and the petitioner “either did or could have raised all twelve claims”
previously. State v. Glenn, 1995 WL 243447, *6 (11th Dist. Mar. 17, 1995). In the present
matter, the trial court found that, with the exception of the request for unsealing the grand
jury transcript, “[a]ll of the information that the Defendant now submits to this Court was
available to him at the time he filed his appeal”, i.e., it is barred by res judicata. Thus, he
was apprised of the trial court’s reason for the denial of his postconviction petition, as is
this court.
{¶20} State v. Lucien, 2023-Ohio-3128 (11th Dist.), cited by Knowlton in support
of his argument, is distinguishable. Lucien involved a judgment that stated the petition
was without merit and dismissed, without giving any reason for the dismissal.
Id. at ¶ 4
and 10. It did not state that the claims were barred because they had previously been
raised or otherwise give a rationale for dismissal, unlike was the case here. In State v.
Cepec,
2024-Ohio-1412 (9th Dist.), also cited by Knowlton, the court did not issue a ruling
on certain grounds raised for relief, which necessitated remand. Here, the court ruled on
all issues raised, albeit jointly. Id. at ¶ 12-13.
{¶21} The first assignment of error is without merit.
{¶22} In his second assignment of error, Knowlton argues that the trial court erred
6
Case No. 2024-A-0054
by failing to hold an evidentiary hearing since he was entitled to relief on one or more
asserted constitutional grounds. We will consider the merits of his fourth through sixth
assignments of error herein, since they reiterate the substantive arguments asserted in
his postconviction petition.
{¶23} “To warrant an evidentiary hearing in a postconviction proceeding, a
petitioner must submit evidence outside the record that sufficiently establishes that the
petitioner is entitled to relief on one or more asserted constitutional grounds.” State v.
Broom, 2016-Ohio-1028, ¶ 29. “A trial court has the discretion to deny a postconviction
petition without discovery or an evidentiary hearing if the petition, supporting affidavits,
documentary evidence, and trial record do not demonstrate ‘sufficient operative facts to
establish substantive grounds for relief.’” Id., citing Calhoun at paragraph two of the
syllabus. Further, “a petition for postconviction relief may be dismissed without an
evidentiary hearing when the claims raised are barred by the doctrine of res judicata.”
State v. Miller,
2018-Ohio-5192, ¶ 17 (11th Dist.).
{¶24} Knowlton raised the following arguments in his postconviction petition: 1.
Trial counsel was ineffective by failing to do the following: properly cross-examine
prosecution’s witnesses when they gave inconsistent statements to police and introduce
transcripts of their police interviews at trial, ensure witnesses were separated, subpoena
medical records, request a jury instruction on Aggravated Assault, object to the
prosecutor commenting on the defendant’s right to remain silent, and provide Knowlton
with complete photo exhibits; 2. Testimony from the police interview transcripts
demonstrated Detective Howell manufactured evidence by leading witnesses to state that
McBride handed the gun to a friend before approaching Knowlton, which led the
7
Case No. 2024-A-0054
witnesses to commit perjury; 3. The prosecution knowingly used perjured testimony when
it allowed witnesses to testify contrary to their statements in the police interviews and
allowed McBride to testify he was hit three times when there was contrary evidence; 4.
The prosecutor committed a Brady violation by withholding evidence that the witnesses
would give testimony contrary to police interviews and not giving the defense text
messages between McBride and the two men who accompanied him to the shooting; 5.
Appellate counsel was ineffective for failing to raise various arguments; 6. Trial counsel
was ineffective for failing to obtain testimony from a private investigator; 7. Trial counsel
was ineffective for failing to ensure a defense witness was properly subpoenaed and
failing to seek a continuance for him to appear; 8. The trial court erred by failing to instruct
the jury on the inferior offense of Aggravated Assault where there was serious
provocation; 9. Trial counsel was ineffective for failing to investigate a second firearm
recovered near the crime scene; 10. The prosecution violated Knowlton’s right to remain
silent by vouching for the honesty of witnesses and commenting on Knowlton’s failure to
give statements on his behalf; 11. The prosecutor violated the “Golden Rule” by injecting
statements of opinion at trial.
{¶25} The trial court decided that these arguments were barred by the doctrine of
res judicata. “A petition for postconviction relief does not provide a petitioner a second
opportunity to litigate his or her conviction.” State v. Hobbs, 2011-Ohio-5106, ¶ 17 (11th
Dist.). “The doctrine of res judicata establishes that ‘a final judgment of conviction bars
the convicted defendant from raising and litigating in any proceeding, except an appeal
from that judgment, any defense or any claimed lack of due process that was raised or
could have been raised by the defendant at the trial which resulted in that judgment of
8
Case No. 2024-A-0054
conviction or on an appeal from that judgment.’” (Citation omitted.) State v. D’Ambrosio,
73 Ohio St.3d 141, 143 (1995). Appellant must provide competent, relevant, and material
evidence outside of the trial court record in support of a postconviction petition to prevent
the claim from being dismissed on res judicata grounds. State v. Lacy,
2020-Ohio-1556,
¶ 26 (11th Dist.), citing
Hobbs at ¶ 18.
{¶26} Knowlton’s First through Fourth Claims primarily relate to issues arising
from what he characterizes as inconsistent testimony from witnesses and statements they
made regarding whether McBride handed his friend, Scott Lindsay, his gun prior to
approaching Knowlton. Knowlton contends that witnesses, particularly Lindsay, made
statements that he did not do so during their police interviews but changed such
statements at trial, argues that trial counsel should have questioned them further, the
detective questioning the witnesses in their interviews encouraged them to state that
McBride handed them the gun, and the prosecutor should not have allowed them to testify
to facts different than those stated in their police interviews.
{¶27} These matters could have been raised in the direct appeal before this court.
The record demonstrates that defense counsel did in fact raise this issue during the trial
and referenced the police interview when cross-examining Scott Lindsay. She specifically
inquired regarding whether Lindsay told police that McBride handed him the gun, pointing
to his inconsistent statement in his police interview. Given this line of questioning, all of
the issues Knowlton raises relating to this matter could have been raised on direct appeal.
Even accepting that the transcripts of the police interviews were not made part of the
record, this did not preclude Knowlton from raising the arguments he sets forth, as all of
the facts necessary to raise such arguments, that Lindsay was inconsistent in his
9
Case No. 2024-A-0054
statements regarding this issue, were present in the trial transcript. Further, Knowlton’s
argument that other witnesses, such as Justin Nemergut and Jerry Wheatly, may have
been inconsistent with their trial testimony is rebutted by his own citations to the trial and
interview transcripts, since they show these witnesses gave similar statements regarding
whether they saw McBride hand the gun to Lindsay in both the interview and their
testimony.
{¶28} Knowlton also argues other actions by trial counsel constituted ineffective
assistance of counsel, such as the failure to separate witnesses and provide him with
complete copies of photographs in evidence. However, whether the witnesses were
separated and what photographs were introduced would have been apparent to Knowlton
and part of the record at trial, such that these issues are barred by res judicata. See State
v. Hundley, 2023-Ohio-2571, ¶ 19 (7th Dist.) (grounds for relief alleging ineffective
assistance of counsel which “rely on what the trial transcripts establish, or do not
establish” and which do not present “any evidence dehors the record to demonstrate that
[the defendant] could not have made these arguments with information already in the
original trial record” are barred by the doctrine of res judicata). To the extent that
Knowlton reasserts the above arguments relating to ineffective assistance of counsel in
his Fourth Assignment of Error, we find they lack merit for these reasons.
{¶29} Knowlton also argues in his Fourth Claim, and his Fifth Assignment of Error,
that the prosecutor committed a Brady violation by withholding knowledge that the
witnesses would testify contrary to their statements in their police interviews, allowing
false testimony, and by not providing the defense with text messages between McBride
and his friends. As to the testimony of the witnesses and whether it was consistent with
10
Case No. 2024-A-0054
their interviews, this is again an issue that was clear at the time of trial. “To establish a
Brady violation, a defendant must demonstrate (1) that the evidence is favorable to the
defendant, because it is either exculpatory or impeaching, (2) that the evidence was
willfully or inadvertently suppressed by the state, and (3) that the defendant was
prejudiced as a result.” State v. George, 2024-Ohio-2125, ¶ 29 (11th Dist.). As to the
issue of Knowlton being provided text messages between McBride and his friends,
Knowlton’s motion contended that there were references to possible text conversations
between them made during the trial, but no such messages were provided in discovery.
However, Knowlton does not attach any such messages or otherwise show that the State
was actually in possession of this evidence, the content of such messages, or that these
messages would have been favorable to the defense.
{¶30} Finally, even presuming that the issue regarding whether Detective Howell
tried to influence the witnesses could not have been raised previously since the full
transcripts of the police interviews were not made part of the record on appeal, this
argument would lack merit. See State v. Wade, 2022-Ohio-1006, ¶ 31 (11th Dist.)
(although the trial court dismissed on the grounds of res judicata, the appellate court can
consider whether there were substantive grounds for relief). The questioning cited by
Knowlton in his brief demonstrates that Howell brought up with each witness the issue of
whether McBride handed the gun to Lindsay, a relevant question given that police were
trying to establish whether McBride was armed when he approached Knowlton. Knowlton
does not cite anything in the record that showed Howell coerced the witnesses or
otherwise used improper tactics to obtain their statements. This issue does not present
sufficient operative facts to establish substantive grounds for relief as required to warrant
11
Case No. 2024-A-0054
an evidentiary hearing.
{¶31} Knowlton’s Fifth Claim, relating to the failure of appellate counsel to raise
certain issues, was not properly advanced in a postconviction petition. State v. Hermison,
2008-Ohio-2918, ¶ 26 (11th Dist.) (“claims of ineffective assistance of appellate counsel
are not cognizable in post-conviction proceedings pursuant to R.C. 2953.21”) (citation
omitted).
{¶32} In his Sixth and Seventh Claims, and his Fourth Assignment of Error,
Knowlton raises additional claims relating to the alleged ineffectiveness of trial counsel.
However, these were again claims that were evident from the record at the time of trial
and thus should have been raised on direct appeal. Knowlton argues that a report of a
private investigator should have been obtained and introduced since funds were allotted
for it, but whether such testimony was acquired and presented can be reviewed on the
face of the record. See State v. Gau, 1999 WL 289140, *7 (11th Dist. Dec. 11, 1998)
(failure to secure witness testimony should have been raised on direct appeal). Similarly,
issues relating to the failure to properly subpoena a defense witness and obtain a
continuance for the presentation of his testimony lack merit for the same reasons.
{¶33} Claims relating to the failure to object to certain testimony, failure to object
to prosecutor’s comments at trial, failure to review certain evidence with the defendant,
failure to subpoena medical records, and failure to object to improperly authenticated
records all could have been raised on direct appeal. Further, we observe that some of
these issues were indeed raised by Knowlton in his November 28, 2023 Application to
Reopen Appeal filed following resolution of his direct appeal, evidencing that he was in
fact able to make such arguments. That appellate counsel did not raise these arguments
12
Case No. 2024-A-0054
does not warrant examining them at a postconviction stage, as Knowlton was permitted
to raise them and they were fully addressed in this court’s January 24, 2024 Judgment
Entry overruling his application.
{¶34} In his Eighth Claim, as well as in his Sixth Assignment of Error, Knowlton
argues that the trial court erred by failing to instruct the jury on the lesser offense of
Aggravated Assault due to serious provocation by the victim, noting evidence in the
record that the victim sent text messages giving rise to the confrontation. This argument
could have been raised on direct appeal, as it is based on evidence that was in the record
at the time of appeal, i.e., that there was a conflict between Knowlton and McBride relating
to alleged abuse of the children and that McBride came to Knowlton’s location to engage
in a conflict.
{¶35} In fact, Knowlton did raise this issue before this court in his Application to
Reopen Appeal. This court rejected the argument, finding that, “[g]iven the limited
evidence to support a finding that Knowlton was acting in a sudden passion or fit of rage,
we do not find error in the trial court’s failure to give such instruction.” State v. Knowlton,
11th Dist. Ashtabula No. 2023-A-0013 (Jan. 24, 2024). Knowlton argues that there is
evidence outside of the record regarding abuse of his children by the victim, which
supports a claim of sufficient provocation. However, there was already evidence of such
allegations admitted through the text messages between Knowlton and the victim so such
evidence would have no bearing on the decision already issued on this matter.
{¶36} In his Ninth Claim, Knowlton argues that trial counsel was ineffective by
failing to investigate a second firearm that was recovered at the scene of the shooting,
which was black and did not match the description of the silver firearm thrown by Lindsay
13
Case No. 2024-A-0054
after the shooting. This argument is again barred by res judicata. Officer Howell testified
at the trial that a black gun was recovered and included this detail in his police report. The
conflict in the colors of the guns was evident from the trial record and could have been
raised on appeal.
{¶37} The Tenth and Eleventh Claims relate directly to statements made by the
prosecutor at trial, all of which were contained in the record and could have been raised
on direct appeal. State v. Peyatt, 2021-Ohio-3310, ¶ 17 (7th Dist.) (“claims of ineffective
trial counsel and improper comments by the assistant prosecutor at trial should have and
could have been brought on direct appeal since the facts concerning these claims
occurred during the trial”).
{¶38} The second and fourth through sixth assignments of error are without merit.
{¶39} In his third assignment of error, Knowlton argues that the trial court failed to
address his motion for leave to file a motion for new trial and the arguments contained
therein individually or provide adequate findings of fact and conclusions of law.
{¶40} “We review a trial court’s ruling on a motion for leave [to file a motion for a
new trial] for an abuse of discretion.” State v. Oneil, 2023-Ohio-1089, ¶ 18 (11th Dist.).
“The term is one of art, connoting judgment exercised by a court which neither comports
with reason, nor the record.” State v. Underwood,
2009-Ohio-2089, ¶ 30 (11th Dist.). An
abuse of discretion is the “trial court’s ‘failure to exercise sound, reasonable, and legal
decision-making.’” State v. Beechler,
2010-Ohio-1900, ¶ 62 (2d Dist.), quoting Black
Law’s Dictionary (8th Ed. 2004).
{¶41} “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
14
Case No. 2024-A-0054
was rendered . . . 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. . . .” Crim.R.
33(B). A motion for new trial on the grounds of newly discovered evidence “shall be filed
within one hundred twenty days” of the verdict. Id. “If . . . 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.”
Id.
{¶42} The substance of Knowlton’s argument under this assignment is that the
court addressed the request for leave jointly with the postconviction petition and did not
provide adequate findings of fact and conclusions of law.
{¶43} It has been consistently held that a judge is not required to issue findings of
fact and conclusions of law when denying a Crim.R. 33 motion for a new trial. State ex
rel. Collins v. Pokorny, 86 Ohio St.3d 70 (1999); State v. Williams,
2014-Ohio-4883, ¶ 26
(11th Dist.); State v. Johnson,
2023-Ohio-918, ¶ 21 (7th Dist.) (“[t]he plain language
of Crim.R. 33 does not require the court to issue findings of fact and conclusions of law
when denying a motion thereunder”). It was not required to make specific findings on the
issues raised in his request for leave.
{¶44} Further, Knowlton fails to provide any authority that the lower court could
not jointly address the postconviction petition and the motion for a new trial in the same
entry. The authority he does cite, State v. Cannon, 2019-Ohio-3941 (1st Dist.), is not
applicable to this point. Cannon held that the trial court erred by overruling the motion for
a new trial rather than ruling only on the issue of whether leave should be granted to file
a motion for new trial. Id. at ¶ 16. It did not address whether a motion for postconviction
15
Case No. 2024-A-0054
petition and a request for leave to file a motion for new trial could be addressed jointly in
the same judgment entry.
{¶45} Knowlton’s appellant’s brief does not provide substantive arguments
pointing to an abuse of discretion in the denial of his request for leave. In his reply brief,
he cites the existence of items of evidence which were not available to him at the time of
his appeal, including letters, transcripts, and affidavits. The jury issued its verdict on
January 9, 2023, and the motion for a new trial was filed on April 8, 2024, well beyond
the deadline for timely filing. To prevail on a motion for leave to file his motion for a new
trial, he was required to show that he was unavoidably prevented from obtaining such
evidence. Knowlton does not present an argument demonstrating why he could not have
requested and received the transcripts to the police interviews, affidavits, or any other
evidence he cites prior to the date of filing his motion for leave.
{¶46} While Knowlton stated in his request for leave that he was prevented from
obtaining certain evidence due to his incarceration, courts have found that “the fact of [a
defendant’s] incarceration, without more, does not amount to clear and convincing proof
that he was unavoidably prevented from discovering the evidence within the time
limitations of Crim.R. 33(B).” State v. Smith, 1998 WL 404458, *5 (2d Dist. Mar. 27,
1998); State v. Barnes,
2018-Ohio-1585, ¶ 29 (5th Dist.). Knowlton’s failure to provide
additional argument to support his delay justified the trial court’s decision to deny his
request and such action did not constitute an abuse of discretion. See
Barnes at ¶ 29
(“[a]ppellant’s ability to file appeals as well as a motion to re-open one appeal, the motions
for a new trial and this pro se appeal belie his complaint that incarceration hampered his
ability to access the legal system to guard his interests”).
16
Case No. 2024-A-0054
{¶47} The third assignment of error is without merit.
{¶48} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas, denying Knowlton’s postconviction petition and request for leave to file
a motion for a new trial, is affirmed. Costs to be taxed against appellant.
JOHN J. EKLUND, J.,
ROBERT J. PATTON, J.,
concur.
17
Case No. 2024-A-0054
