State v. Wampler

Opinion

[Cite as State v. Wampler, 2026-Ohio-2857.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : C.A. No. 30737 Appellee : : Trial Court Case No. 1982 CR 00764 v. : : (Criminal Appeal from Common Pleas CHARLES K. WAMPLER : Court) : Appellant : FINAL JUDGMENT ENTRY & : OPINION

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Pursuant to the opinion of this court rendered on July 24, 2026, the judgment of the

trial court is affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately

send a copy of the court’s ruling to each party and note that action on the docket.

Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified

copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note

the service on the appellate docket.

For the court,

RONALD C. LEWIS, PRESIDING JUDGE

EPLEY, J., and HUFFMAN, J., concur. OPINION MONTGOMERY C.A. No. 30737

CHARLES K. WAMPLER, Appellant, Pro Se MICHAEL P. ALLEN, Attorney for Appellee

LEWIS, P.J.

{¶ 1} Defendant-appellant Charles K. Wampler appeals from the Montgomery County

Common Pleas Court’s order denying his motion for leave to file a delayed motion for a new

trial. For the following reasons, we affirm the judgment of the trial court.

I. Course of Proceedings

{¶ 2} In 1982, after Wampler’s case was transferred from the juvenile court to the

general division of the common pleas court and after a jury trial, he was convicted of

aggravated murder, rape, abduction, and abuse of a corpse relating to the February 5, 1982

death of a 13-year-old boy. Wampler was 15 years old on the night the offenses were

committed. Multiple witnesses testified at trial that the victim was at Wampler’s home the

night he was murdered. Several pieces of physical evidence found on or near the victim

linked Wampler to the crimes. Wampler received an aggregate prison sentence of life plus

9 to 30 years. Wampler directly appealed from his convictions, raising seven assignments

of error. We overruled his assignments of error and affirmed his convictions. State v.

Wampler, 1983 Ohio App. LEXIS 12179 (2d Dist. Nov. 10, 1993).

{¶ 3} In July 2021, Wampler filed a motion for resentencing. He argued that he was

entitled to a new sentencing hearing in accordance with State v. Patrick, 2020-Ohio-6803,

because the trial court did not take his youth into consideration at his original sentencing.

The trial court granted the motion and held a hearing. Following Wampler’s allocution, the

trial court found that Wampler’s youth at the time of the offense did not mitigate the sentence

2 that was originally imposed and did not warrant a lesser sentence. The trial court

resentenced Wampler. On direct appeal from Wampler’s resentencing, we affirmed the

judgment of the trial court because Patrick did not apply retroactively and the trial court

imposed the same sentence as it had originally imposed. State v. Wampler, 2024-Ohio-

2833, ¶ 13-14 (2d Dist.).

{¶ 4} On June 4, 2024, Wampler filed a motion for leave to file a delayed motion for

a new trial. After the State filed its opposition to the motion, Wampler moved to withdraw

his motion for leave. On September 24, 2024, the trial court granted Wampler’s request to

withdraw his motion for leave.

{¶ 5} On September 9, 2025, Wampler again filed a motion for leave to file a delayed

motion for a new trial. Wampler attached the following documents to his motion for leave:

(1) an April 24, 2024 letter from a private investigator relating to his interview with Joseph

Michael Shipman, a witness who testified at trial; (2) a February 8, 1982 report prepared by

J.C. Joyce, a coroner’s investigator; (3) a February 1982 search warrant; (4) two February 6,

1982 police reports; (5) a February 9, 1982 police report; (6) an unsigned April 25, 2024

affidavit containing statements purportedly made by Christoper Brian Canterbury, a friend of

the victim; (7) documents dated in 1984 related to the indictment and conviction of Robert

D. Head for theft in office and subsequent disciplinary proceedings before the Ohio Supreme

Court involving Head; and (8) April 29, 1985 and September 16, 1987 letters from Judge

John W. Kessler related to the disciplinary proceedings involving Head. According to

Wampler’s motion for leave, the documents attached to his motion established that the

prosecution knowingly allowed perjured testimony at his trial, the prosecution withheld

exculpatory evidence, the evidence was insufficient to convict Wampler, his trial counsel

3 provided ineffective assistance, and the trial judge was biased in favor of the prosecutor,

Head.

{¶ 6} The State opposed Wampler’s motion for leave, contending that Wampler failed

to show by clear and convincing proof that he was unavoidably prevented from discovering

the new evidence referenced in his motion within the requisite time provided in

Crim.R. 33(B). The State also argued that the allegations of prosecutorial misconduct and

judicial bias were not the type of new evidence that could serve as the basis of a motion for

a new trial.

{¶ 7} On December 18, 2025, the trial court denied Wampler’s motion for leave to file

a delayed motion for a new trial because Wampler had failed to demonstrate by clear and

convincing evidence that he was unavoidably prevented from discovering the new evidence

referenced in his motion within the time provided by Crim.R. 33(B). The court also found

that Wampler had “not pointed to any evidence from his trial or post-conviction proceedings

to support a finding of judicial or prosecutorial bias, nor [had] he complied with the mandates

of Crim.R. 33(C), which requires that allegations of prosecutorial misconduct be supported

by affidavit(s).” Decision (Dec. 18, 2025), p. 9. Wampler filed a notice of appeal from the

trial court’s judgment.

II. The Trial Court Did Not Abuse Its Discretion By Denying Wampler’s Motion

for Leave to File a Delayed Motion for a New Trial

{¶ 8} Wampler’s three assignments of error all question the trial court’s decision to

overrule his motion for leave to file a motion for a new trial. His assignments of error state:

THE TRAL COURT ABUSED ITS DISCRETION BY DENYING

DEFENDANT/APPELLANT’S OHIO CRIM.R. 33(B) MOTION WITHOUT A

4 HEARING IN VIOLATION OF DEFENDANT/APPELLANT’S

CONSTITUTIONAL RIGHTS AND IN ERROR OF LAW.

THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED

DEFENDANT/APPELLANT’S DUE PROCESS RIGHTS BY DISREGARDING

CLEAR PROOF OF PROSECUTORIAL MISCONDUCT AND JUDICIAL BIAS.

DEFENDANT/APPELLANT’S DUE PROCESS RIGHTS BY RESTATING

INFORMATION THAT HAD BEEN FALSELY PRESENTED, BY THE

PROSECUTION, DURING DEFENDANT/APPELLANT’S DIRECT APPEAL.

{¶ 9} “A trial court’s decision on a Crim.R. 33 motion for a new trial will not be reversed

absent an abuse of discretion.” State v. Gillispie, 2012-Ohio-1656, ¶ 31 (2d Dist.), citing

State v. Schiebel, 55 Ohio St.3d 71 (1990), paragraph one of the syllabus, and State v.

Matthews, 1998-Ohio-433, ¶ 19. “A trial court abuses its discretion when it makes a

decision that is unreasonable, unconscionable, or arbitrary.” State v. Darmond, 2013-Ohio-

966, ¶ 34, citing State v. Adams, 62 Ohio St.2d 151, 157 (1980).

{¶ 10} “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.” Crim.R. 33(B). It is undisputed

that Wampler did not meet the 120-day requirement in Crim.R. 33(B).

{¶ 11} “In order to be able to file a motion for a new trial based on newly discovered

evidence beyond the one hundred and twenty days prescribed in Crim.R. 33(B), a petitioner

must first file a motion for leave, showing by ‘clear and convincing proof that he has been

unavoidably prevented from filing a motion in a timely fashion.’” State v. Parker, 2008-Ohio-

5178, ¶ 16 (2d Dist.), quoting State v. Morgan, 2006-Ohio-145, ¶ 7 (3d Dist.). Clear and

5 convincing proof has been defined as “that measure or degree of proof which is more than

a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required

‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier

of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford,

161 Ohio St. 469 (1954), paragraph three of the syllabus.

{¶ 12} “‘[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.’” Parker at ¶ 16, quoting

State v. Walden, 19 Ohio App.3d 141, 145-146 (10th Dist. 1984). “‘To allow the trial court

to gauge the defendant’s diligence, the defendant must describe all investigative actions

undertaken within the 120-day period for timely filing a Crim.R. 33(A)(6) motion and explain

why he was unavoidably prevented from discovering the evidence before the 120-day period

elapsed.’” State v. Sevilla, 2023-Ohio-1726, ¶ 14 (10th Dist.), quoting State v. Cashin,

2017-Ohio-9289, ¶ 17 (10th Dist.).

{¶ 13} The trial court reviewed all the evidence Wampler attached to his motion for

leave and found that Wampler failed to demonstrate by clear and convincing proof that he

was unavoidably prevented from discovering the evidence within the 120 days provided by

Crim.R. 33(B). The court also found that the documents relating to the conviction of and

subsequent disciplinary proceedings against Robert Head failed to establish any basis on

which to grant a new trial. Upon review of the record, we conclude that the trial court did

not abuse its discretion by denying Wampler’s motion for leave to file a motion for a new

trial.

6 {¶ 14} The evidence submitted with Wampler’s motion for leave failed to show that

he was unavoidably prevented from filing a motion for a new trial within the 120 days

provided in Crim.R. 33. The first document attached to Wampler’s motion is an April 24,

2024 letter from a private investigator relating to an interview with Joseph Michael Shipman,

who had testified at Wampler’s trial. Wampler attempted to use this letter to show that

Shipman’s testimony at trial was incorrect and that the prosecution knowingly allowed

perjured testimony at trial. But Wampler failed to submit an affidavit detailing what, if any,

investigative actions he took in the 120 days following the jury’s verdict or explaining why he

could not have obtained the information from Shipman during that 120-day period.

{¶ 15} Wampler then relied on several police reports, a coroner’s investigative report,

and a search warrant from February 1982 to argue that facts gleaned from these documents

helped undercut the reliability of his convictions. Once again, however, Wampler failed to

offer any explanation as to why he was unavoidably prevented from discovering this

evidence within the 120-day time requirement. Wampler did not submit an affidavit

explaining how he came into possession of these documents, what efforts he expended to

gain possession of those documents, and why he could not have made those same efforts

during the 120 days following the jury’s verdicts. He also failed to offer any evidence

establishing that his trial counsel had not received copies of these documents prior to trial.

Indeed, Wampler conceded on page 12 of his motion for leave that he did not have any proof

that the State had not provided these documents to defense counsel prior to trial.

{¶ 16} Wampler also relied on an April 25, 2024 affidavit containing statements

purportedly made by Christoper Brian Canterbury, a friend of the victim. This affidavit was

not signed by Canterbury and therefore provides little, if any, evidentiary value. More

7 fundamentally, however, Wampler once again failed to explain why this information could

not have been obtained from Canterbury within the time requirements of Crim.R. 33(B).

{¶ 17} The last set of documents Wampler relied on involved documents related to

Robert Head’s conviction for theft in office and letters written by Judge Kessler in support of

Head during the subsequent attorney disciplinary proceedings before the Ohio Supreme

Court. According to Wampler, Head was one of the prosecutors at Wampler’s trial and

Judge Kessler presided over Wampler’s trial. We agree with Wampler that he was

unavoidably prevented from obtaining those documents within the time requirement in

Crim.R. 33(B) because they did not exist and did not become public information until well

after the 120-day period expired. That said, those documents do not provide any

substantive ground on which to grant a new trial. The fact that the prosecutor at Wampler’s

trial was later indicted and convicted for theft in office does not establish that the prosecutor

did anything related to Wampler’s case that supports the granting of a new trial. In short,

Wampler has identified no link between Head’s conviction for an unrelated crime and

Wampler’s ultimate convictions. The documents about Head’s unrelated criminal

conviction and subsequent attorney disciplinary proceedings are immaterial to Head’s

motion for leave. See State v. Bethel, 2022-Ohio-783, ¶ 59 (noting that a hearing on a

motion for a new trial would be an exercise in futility where the evidence appellant was

unavoidably prevented from discovering was immaterial). Moreover, Wampler conceded in

his reply appellate brief that the prosecutorial misconduct that occurred “is clearly contained

in the court records.” Appellant’s Reply Brief, p. 3. Therefore, Wampler was not

unavoidably prevented from discovering the alleged evidence of prosecutorial misconduct

within 120 days of the jury’s verdicts. And because the prosecutorial misconduct that

allegedly occurred “is clearly contained in the court records,” Wampler should have raised

8 his argument regarding prosecutorial misconduct on direct appeal. Res judicata precludes

him from raising an argument in a motion for a new trial that he could have raised in his prior,

direct appeal. State v. Trigg, 2026-Ohio-585, ¶ 24 (2d Dist.).

{¶ 18} Wampler also failed to identify any link between the letters Judge Kessler

wrote during Head’s subsequent attorney disciplinary proceedings and any rulings made at

Wampler’s trial that could warrant a new trial. Rather, Wampler simply argued that Judge

Kessler was clearly biased because he “allowed defendant’s [rape] conviction to stand even

though there was clearly insufficient evidence to support that conviction” and because he

allowed the prosecutor to make inappropriate assertions in the opening and closing

statements. These two arguments fail. Wampler raised seven assignments of error on

direct appeal from his convictions, including those based on manifest weight and sufficiency-

of-the-evidence. We overruled all the assignments of error and affirmed the convictions.

The fact that, a few years after the trial, the trial court judge wrote letters supporting Head to

a disciplinary counsel in no way affects whether the evidence at Wampler’s trial was

sufficient to support Wampler’s convictions. Additionally, any rulings made before or during

Wampler’s trial by the trial judge could have been challenged on direct appeal if Wampler

had believed the rulings were not supported by the facts or the law. Notably, Wampler’s

argument that the prosecutor made inappropriate assertions in his opening and closing

statements about rape could have been raised in Wampler’s direct appeal. Consequently,

Wampler is barred by res judicata from raising that argument in a motion for a new trial filed

after the resolution of his direct appeal. Id.

{¶ 19} Finally, Wampler identified in his reply appellate brief the following instances

of ineffective assistance of trial counsel that he believes warrants a new trial: (1) counsel

made no objections to the prosecution’s improper comments at trial; (2) counsel made no

9 objections to the clear use of perjured testimony; (3) counsel failed to point out that no proof

had been presented to the jury showing that a rape had actually occurred; and (4) counsel

failed to call a single expert or present any real evidence. Appellant’s Reply Brief, p. 6-7.

Wampler did not present these ineffective assistance of trial counsel arguments in his motion

for leave to file a delayed motion for new trial or in his initial appellate brief. Therefore,

these arguments that were first raised in his reply appellate brief are not properly before us,

and we will not consider them.

{¶ 20} Due to Wampler’s failure to show by clear and convincing proof that he was

unavoidably prevented from filing his motion for a new trial in a timely fashion, we conclude

that the trial court did not abuse its discretion in denying his motion for leave to file a delayed

motion for a new trial without holding a hearing. The assignments of error are overruled.

III. Conclusion

{¶ 21} Having overruled the assignments of error, we affirm the judgment of the trial

court.

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EPLEY, J., and HUFFMAN, J., concur.