[Cite as State v. Dues, 2017-Ohio-6983.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105388
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JERAEL DUES DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-565262-A
BEFORE: McCormack, P.J., Laster Mays, J., and Jones, J.
RELEASED AND JOURNALIZED: July 27, 2017 ATTORNEY FOR APPELLANT
Paul A. Mancino, Jr. Mancino, Mancino & Mancino 75 Public Square Bldg., Suite 1016 Cleveland, OH 44113-2098
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor
By: Mary McGrath Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, P.J.:
{¶1} Defendant-appellant Jerael U. Dues was convicted in 2013 for multiple
counts of drug offenses. This court affirmed his convictions in State v. Dues,
2014-Ohio-5276, 24 N.E.3d 751 (8th Dist.), appeal not accepted, 142 Ohio St.3d 1518,
2015-Ohio-2341, 1607, 33 N.E.3d 66 (2015). In 2016, Dues filed a motion at the trial
court for leave to file a motion for a new trial. The trial court denied leave for the
motion. After a review of the record and applicable law, we affirm the trial court’s
judgment.
Background
{¶2} The facts pertinent to the issue raised in the instant appeal were described in
our opinion in Dues’s direct appeal as follows:
On July 19, 2012, three members of the Cuyahoga County Sheriff’s Impact Unit, along with Detective Darren Porter from the Richmond Heights Police Department, went to Dues’s apartment in Richmond Heights. The apartment was on the third floor of the Richmond Park Apartments. The officers were there to execute a warrant for the arrest of Dues relating to a misdemeanor assault charge.
Upon arrival, the officers heard loud music and people talking inside the apartment. They knocked on the door and identified themselves as police officers. The music was turned down and someone looked out from the door’s peephole. The officers heard people running around and dishes clanging together. Detective Brian Nolan started to bang on the door and again announced the presence of the police. Hearing the commotion, a resident from the next unit came out. Because the apartments have adjacent balconies, Detective Scott Vargo asked for permission to go to the neighbor’s balcony to observe Dues’s apartment. The neighbor gave Detective Vargo consent to enter her apartment. As soon as Det. Vargo went to the neighbor’s balcony, he saw a male, later identified to be [Dues’s codefendant Deaunte Bullitt], throwing a box off Dues’s balcony. Bullitt then grabbed the rail with both hands and looked down at the rail. Unsure if Bullitt was going to jump, Det. Vargo ordered Bullitt to lay down on the balcony and yelled to the other officers that a male was throwing items off Dues’s balcony. The other three officers then quickly forced their way into Dues’s apartment. They found Dues sitting on the couch in the living room. Sgt. Scott Hirko ran to the balcony area and arrested Bullitt, and Det. Porter took Dues into custody as well.
Det. Porter then searched the ground below Dues’s balcony and found a bag of drugs inside a “GoodSense” sandwich bag box, which later tested to be approximately 100 grams of crack cocaine. Det. Porter also found, 30 feet away, a bag with a large amount of cash, later determined to be $22,000.
Dues at ¶ 3-6.
{¶3} Dues was subsequently convicted of six counts of drug-related and other
offenses: trafficking and possessing over 100 grams of cocaine, each with a major drug
offender specification, trafficking and possessing between five and ten grams of heroin,
possession of criminal tools, and endangering children. He was sentenced to 11 years in
prison.
Purported Newly Discovered Evidence
{¶4} After his convictions were affirmed by this court in 2014 and the Supreme
Court of Ohio declined to review this court’s decision in 2015, Dues obtained new
counsel and, on July 15, 2016, counsel filed a “Motion for Leave to File a Motion for
New Trial Based on Newly Discovered Evidence.”
{¶5} Dues’s new counsel alleged he recently obtained a copy of the arrest
warrant issued by the Lyndhurst Municipal Court that led the police to Dues’s apartment on July 19, 2012, and his review of the warrant showed it was invalid. Dues’s counsel
claimed the warrant was invalid because the criminal complaint on which the arrest
warrant was based stated merely that Dues “did knowingly cause or attempt to cause
physical harm” to a Christopher Kovacic without any additional facts to show that there
was a probable cause to believe that an offense had been committed.
{¶6} The state filed a written opposition to Dues’s motion. The state opposed
his motion on the ground that Dues failed to meet his burden to show, by clear and
convincing evidence, that he was unavoidably prevented from discovering the alleged
new evidence.
{¶7} The state argued that Dues had been aware of the arrest warrant. Before
trial, the state had provided in discovery the police reports that showed that the officers
went to Dues’s apartment to execute an arrest warrant for assault. Dues filed a motion
to suppress evidence, and the motion specifically referenced the arrest warrant. At the
suppression hearing, Dues’s counsel mentioned the arrest warrant for assault several
times and Det. Vargo testified that he executed the arrest warrant on Dues on the day the
officers discovered drugs in his apartment. Dues’s trial counsel had in fact stipulated
before trial that the arrest warrant was valid.
{¶8} The trial court denied Dues’s motion for leave to file a motion for a new trial
without a hearing. On appeal, Dues raises two assignments of error, which we discuss
jointly. They state: 1. Defendant was denied due process of law when the court overruled defendant’s motion for leave to file a motion for a new trial based on newly discovered evidence.
2. Defendant was denied due process of law when his motion for leave to
file a motion for a new trial was denied without an evidentiary hearing.
Analysis
{¶9} Crim.R. 33 sets forth grounds upon which a new trial may be granted.
One of the grounds for a new trial is “[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). To warrant the granting of a motion for a new
trial on the ground of newly discovered evidence, it must be shown that
the new evidence (1) discloses a strong probability that it will change the result of a new trial if 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, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus. The trial court’s
decision to grant or deny a motion for a new trial on the basis of newly discovered
evidence is within its sound discretion and we will not disturb that decision absent an
abuse of discretion. State v. Hawkins, 66 Ohio St.3d 339, 350, 612 N.E.2d 1227 (1993).
{¶10} In this case, however, we do not reach the question of whether a new trial
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[Cite as State v. Dues, 2017-Ohio-6983.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105388
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JERAEL DUES DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-565262-A
BEFORE: McCormack, P.J., Laster Mays, J., and Jones, J.
RELEASED AND JOURNALIZED: July 27, 2017 ATTORNEY FOR APPELLANT
Paul A. Mancino, Jr. Mancino, Mancino & Mancino 75 Public Square Bldg., Suite 1016 Cleveland, OH 44113-2098
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor
By: Mary McGrath Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, P.J.:
{¶1} Defendant-appellant Jerael U. Dues was convicted in 2013 for multiple
counts of drug offenses. This court affirmed his convictions in State v. Dues,
2014-Ohio-5276, 24 N.E.3d 751 (8th Dist.), appeal not accepted, 142 Ohio St.3d 1518,
2015-Ohio-2341, 1607, 33 N.E.3d 66 (2015). In 2016, Dues filed a motion at the trial
court for leave to file a motion for a new trial. The trial court denied leave for the
motion. After a review of the record and applicable law, we affirm the trial court’s
judgment.
Background
{¶2} The facts pertinent to the issue raised in the instant appeal were described in
our opinion in Dues’s direct appeal as follows:
On July 19, 2012, three members of the Cuyahoga County Sheriff’s Impact Unit, along with Detective Darren Porter from the Richmond Heights Police Department, went to Dues’s apartment in Richmond Heights. The apartment was on the third floor of the Richmond Park Apartments. The officers were there to execute a warrant for the arrest of Dues relating to a misdemeanor assault charge.
Upon arrival, the officers heard loud music and people talking inside the apartment. They knocked on the door and identified themselves as police officers. The music was turned down and someone looked out from the door’s peephole. The officers heard people running around and dishes clanging together. Detective Brian Nolan started to bang on the door and again announced the presence of the police. Hearing the commotion, a resident from the next unit came out. Because the apartments have adjacent balconies, Detective Scott Vargo asked for permission to go to the neighbor’s balcony to observe Dues’s apartment. The neighbor gave Detective Vargo consent to enter her apartment. As soon as Det. Vargo went to the neighbor’s balcony, he saw a male, later identified to be [Dues’s codefendant Deaunte Bullitt], throwing a box off Dues’s balcony. Bullitt then grabbed the rail with both hands and looked down at the rail. Unsure if Bullitt was going to jump, Det. Vargo ordered Bullitt to lay down on the balcony and yelled to the other officers that a male was throwing items off Dues’s balcony. The other three officers then quickly forced their way into Dues’s apartment. They found Dues sitting on the couch in the living room. Sgt. Scott Hirko ran to the balcony area and arrested Bullitt, and Det. Porter took Dues into custody as well.
Det. Porter then searched the ground below Dues’s balcony and found a bag of drugs inside a “GoodSense” sandwich bag box, which later tested to be approximately 100 grams of crack cocaine. Det. Porter also found, 30 feet away, a bag with a large amount of cash, later determined to be $22,000.
Dues at ¶ 3-6.
{¶3} Dues was subsequently convicted of six counts of drug-related and other
offenses: trafficking and possessing over 100 grams of cocaine, each with a major drug
offender specification, trafficking and possessing between five and ten grams of heroin,
possession of criminal tools, and endangering children. He was sentenced to 11 years in
prison.
Purported Newly Discovered Evidence
{¶4} After his convictions were affirmed by this court in 2014 and the Supreme
Court of Ohio declined to review this court’s decision in 2015, Dues obtained new
counsel and, on July 15, 2016, counsel filed a “Motion for Leave to File a Motion for
New Trial Based on Newly Discovered Evidence.”
{¶5} Dues’s new counsel alleged he recently obtained a copy of the arrest
warrant issued by the Lyndhurst Municipal Court that led the police to Dues’s apartment on July 19, 2012, and his review of the warrant showed it was invalid. Dues’s counsel
claimed the warrant was invalid because the criminal complaint on which the arrest
warrant was based stated merely that Dues “did knowingly cause or attempt to cause
physical harm” to a Christopher Kovacic without any additional facts to show that there
was a probable cause to believe that an offense had been committed.
{¶6} The state filed a written opposition to Dues’s motion. The state opposed
his motion on the ground that Dues failed to meet his burden to show, by clear and
convincing evidence, that he was unavoidably prevented from discovering the alleged
new evidence.
{¶7} The state argued that Dues had been aware of the arrest warrant. Before
trial, the state had provided in discovery the police reports that showed that the officers
went to Dues’s apartment to execute an arrest warrant for assault. Dues filed a motion
to suppress evidence, and the motion specifically referenced the arrest warrant. At the
suppression hearing, Dues’s counsel mentioned the arrest warrant for assault several
times and Det. Vargo testified that he executed the arrest warrant on Dues on the day the
officers discovered drugs in his apartment. Dues’s trial counsel had in fact stipulated
before trial that the arrest warrant was valid.
{¶8} The trial court denied Dues’s motion for leave to file a motion for a new trial
without a hearing. On appeal, Dues raises two assignments of error, which we discuss
jointly. They state: 1. Defendant was denied due process of law when the court overruled defendant’s motion for leave to file a motion for a new trial based on newly discovered evidence.
2. Defendant was denied due process of law when his motion for leave to
file a motion for a new trial was denied without an evidentiary hearing.
Analysis
{¶9} Crim.R. 33 sets forth grounds upon which a new trial may be granted.
One of the grounds for a new trial is “[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). To warrant the granting of a motion for a new
trial on the ground of newly discovered evidence, it must be shown that
the new evidence (1) discloses a strong probability that it will change the result of a new trial if 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, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus. The trial court’s
decision to grant or deny a motion for a new trial on the basis of newly discovered
evidence is within its sound discretion and we will not disturb that decision absent an
abuse of discretion. State v. Hawkins, 66 Ohio St.3d 339, 350, 612 N.E.2d 1227 (1993).
{¶10} In this case, however, we do not reach the question of whether a new trial
should be granted based on the purportedly newly discovered evidence, because Dues did
not file a motion for new trial within the time prescribed by Crim.R. 33. Under Crim.R. 33(B), a motion for a new trial on account of newly discovered evidence must be filed
within 120 days after the verdict. Crim.R. 33(B). If the 120-day time period has expired,
as here, the defendant must first seek leave of the trial court to file a delayed motion for a
new trial. State v. Mathis, 134 Ohio App.3d 77, 79, 730 N.E.2d 410 (1st Dist.1999).
{¶11} To obtain leave, Crim.R. 33(B) requires that the defendant must demonstrate
by clear and convincing evidence that he was unavoidably prevented from discovering
the new evidence within the 120-day time period. Id. at 79. A trial court’s decision to
grant or deny a motion for leave to file a delayed motion for a new trial is also reviewed
for an abuse of discretion. State v. Washington, 8th Dist. Cuyahoga No. 103875,
2016-Ohio-5329, ¶ 16. “‘[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. Brown, 8th Dist. Cuyahoga
No. 95253, 2011-Ohio-1080, ¶ 13, quoting State v. Walden, 19 Ohio App.3d 141,
145-146, 483 N.E.2d 859 (10th Dist. 1984).
{¶12} The decision whether to hold an evidentiary hearing on a defendant’s
request for leave to file a delayed motion for new trial falls within the sound discretion of
the trial court as well. State v. Hill, 8th Dist. Cuyahoga No. 102083, 2015-Ohio-1652, ¶
16, citing State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, 869 N.E.2d 77, ¶
19 (2d Dist.). A defendant is only entitled to a hearing if he submits documents that on
their face support the claim of being unavoidably prevented from timely discovering the new evidence. McConnell at ¶ 19. See also State v. Ambartsoumov, 10th Dist.
Franklin Nos. 12AP-878 and 12AP-877, 2013-Ohio-3011, ¶ 13 (leave may be summarily
denied where neither the motion nor its supporting affidavits embody prima facie
evidence of unavoidable delay).
{¶13} Before the trial court and on appeal, Dues has focused on his contention that
the arrest warrant was invalid. He does not explain why the alleged invalidity of the
arrest warrant would change the outcome of the trial in light of the fact — as
recounted by this court in our opinion in his direct appeal — that the police officers
entered the apartment after they had announced the officers’ presence, heard commotions
inside the apartment, and then saw a male throw a box off Dues’s balcony and appear to
be ready to jump off the balcony.
{¶14} More importantly, Dues does not set forth any reasons, before the trial court
or here on appeal, why the arrest warrant should be considered “new evidence” and why
he was unavoidably prevented from discovering it within 120 days of the verdict, when
the record before us reflects his trial counsel was well aware of the existence of the arrest
warrant. The trial court did not abuse its discretion in denying leave for a motion for a
new trial without holding a hearing.
{¶15} 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. 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.
________________________________________ TIM McCORMACK, PRESIDING JUDGE
ANITA LASTER MAYS, J., and LARRY A. JONES, SR., J., CONCUR