State v. Isa , 2014 Ohio 139 ( 2014 )

[Cite as State v. Isa, 2014-Ohio-139.]
IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2013 CA 20
v. : T.C. NO. 07CR207
ABRAHAM ISA : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 17th day of January , 2014.
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JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main
Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
ABRAHAM ISA, #566-878, Chillicothe Correctional Institute, P. O. Box 55, Chillicothe,
Ohio 45601
Defendant-Appellant
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DONOVAN, J.
{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Abraham
Isa, (“Isa”) filed April 25, 2013. Isa appeals from the April 2, 2013 denial of his pro se
“Motion for Leave to File a Delayed Motion for New Trial and Defendant’s Motion for New
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Trial Instanter” (“Motion for Leave”). We hereby affirm the judgment of the trial court.
{¶ 2} Isa was convicted on thirteen counts of gross sexual imposition and two
counts of rape. He received an aggregate sentence of 24 years, six months. Isa’s victims
were five young women, two of whom were minors. They were employed by Isa at a
Sunoco Subway shop and at the St. Paris Grill in St. Paris, Ohio. Isa’s conviction was
affirmed on direct appeal. State v. Isa, 2d Dist. Champaign No. 07-CA-37,
2008-Ohio-5906. As this Court noted in Isa’s direct appeal, each “of the alleged victims
testified at trial. They all testified that Isa inappropriately touched their breasts and their
buttocks and put his hands down their pants. Two of the victims testified that Isa placed his
finger in their vaginas. Some of them testified that Isa exposed his penis and forced them to
touch his penis.” Id., ¶ 5.
{¶ 3} We note that this Court also affirmed the denial of two pro se
post-conviction motions to correct Isa’s sentence, one of which alleged that the sentence was
void due to a post-release control defect and the other of which alleged that the sentence was
improperly computed. State v. Isa, 2d Dist. Champaign Nos. 10-CA-1, 10–CA-2,
2010-Ohio-3770. This Court also affirmed the denial of Isa’s pro se “Motion to Vacate
Sentence [as] Contrary to Law,” in which he asserted ineffective assistance of defense
counsel, in part for allegedly advising him to reject a favorable plea bargain; the trial court
treated the motion as a petition for post-conviction relief. State v. Isa, 2d Dist. Champaign
No. 2012-CA-44, 2013-Ohio-3382.
{¶ 4} Isa filed his Motion for Leave on March 13, 2013, based upon “truly newly
discovered evidence received recently * * * that he was unavoidably prevented from
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discovering until now and not disclosed during his criminal trial, which supports that Mr. Isa
should be discharged from his convictions and afforded a [n]ew [t]rial.” Attached to the
motion are the affidavits of Isa and Sylvia Isa, which contain nearly identical language.
Both affidavits assert that defense counsel’s representation at trial was deficient. Both
affidavits assert that Isa and Sylvia Isa, as well as “Ace Investigations, A Full Service
Investigative Agency,” investigated the matter and now conclude that Isa’s two sons,
Munder and Knadall “actually committed these crimes or caused the accusers to testify
against him.” The affidavits assert that Munder “was working undercover for the FBI” in
order to “get Abraham Isa convicted and sent away” for divorcing Munder’s mother. The
affidavits assert that Munder and Knadall are missing, and that Munder “took Abraham
Isa’s car and Thirteen Thousand Dollars” from Sylvia Isa. Isa’s affidavit asserts that he is
innocent, and that the evidence adduced against him at trial was false. The affidavits assert
that there was “no physical evidence, no DNA evidence or other empir[i]cal evidence” in
this case.
{¶ 5} In overruling Isa’s Motion for Leave, the trial court determined as follows:
The court finds that Defendant has not shown, by clear and
convincing evidence, that he was unavoidably prevented from discovering the
evidence. According to his affidavit, Jennifer Switzer was the first
prospective witness to raise the possibility that Munder Isa committed the
crimes during an interview conducted on March 29, 2009, nearly four years
prior to the filing of this motion. Defendant offers no explanation as to why
it apparently took four additional years to gather any other information
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needed for the present motion. Moreover, it is not unreasonable to find that
Defendant has been aware of defense counsel’s claimed ineffectiveness for
some time especially since this issue was raised as an assignment of error on
direct appeal. * * *.
{¶ 6} We note that, on October 23, 2013, Isa filed a motion to supplement his brief
with a copy of the investigation report prepared by Ace Investigations and relied upon in his
brief. This Court overruled his motion to supplement on November 25, 2013.1
{¶ 7} Isa asserts three assignments of error herein. We will consider them
together. They are as follows:
THE TRIAL COURT ERRED AS A MATTER OF LAW AND
ABUSED ITS DISCRETION BY DENYING [ISA’S MOTION FOR
LEAVE]; PREMISED UPON TRULY NEWLY DISCOVERED EVIDENCE
RECENTLY RECEIVED AND NOT DISCLOSED DURING HIS
CRIMINAL TRIAL. FURTHER, THAT THE TRIAL COURT ERRED
AND ABUSED ITS DISCRETION BY NOT CONCLUDING THAT HE
WAS CLEARLY UNAVOIDABLY PREVENTED FROM DISCOVERING
OR PRESENTING SAID EVIDENCE UNTIL NOW DUE TO HIS
INABILITY TO UNDERSTAND THE ENGLISH LANGUAGE, AS HE IS
A PALESTINIAN AMERICAN WHO SPEAKS ARABIC AS A FIRST
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On December 27, 2013, Isa filed a document captioned “Change of
Venue and Pursuant to Crim.R. 18 and Disability of Judge Pursuant to Crim.R.
25.” This untimely filing in this court does not affect our jurisdiction to decide
this appeal.
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LANGUAGE, AS WELL AS THE INEFFECTIVE ASSISTANCE OF
BOTH TRIAL AND APPELLATE COUNSEL IN THESE PROCEEDINGS.
And,
THE TRIAL COURT ERRED AS A MATTER OF LAW AND
ABUSED ITS DISCRETION BY DENYING
DEFENDANT-APPELLANT’S [MOTION]; GIVEN THE WEIGHT AND
EXTENT OF THE NEW EVIDENCE PRESENTED IN THE FORM OF
AFFIDAVITS; PREVENTING HIM FROM RECEIVING DUE PROCESS
AND CREATING A FUNDAMENTAL MISCARRIAGE OF JUSTICE.
And,
THE TRIAL COURT ERRED BY RULING THAT DEFENDANT
APPELLANT’S MOTION FOR LEAVE TO FILE A DELAYED MOTION
FOR NEW TRIAL WAS NOT TIMELY FILED AND ERRED AS A
MATTER OF LAW AND ABUSED ITS DISCRETION BY NOT
HOLDING AN[] EVIDENTIARY HEARING.
{¶ 8} As this Court has previously noted:
Crim.R. 33(A)(6) permits a convicted defendant to file a motion for a
new trial upon grounds that new evidence material to the defense has been
discovered that the defendant could not with reasonable diligence have
discovered and produced at the trial. However, such a motion must be filed
within 120 days after the day of the verdict, unless the trial court finds by
clear and convincing evidence that he was unavoidably prevented from
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discovering the evidence.
“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
the above rule, 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. Morgan, Shelby App. No.
17-05-26, 2006-Ohio-145, 2006 WL 93108. “[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.” State
v. Walden (1984), 19 Ohio App.3d 141, 145-146, 19 OBR 230, 483 N.E.2d
859. State v. Parker, 178 Ohio App. 3d 574, 2008-Ohio-5178, 899 N.E.2d
183, ¶ 15-16 (2d Dist.). See also R.C. 2945.80.
{¶ 9} Regarding Isa’s assertion that he was entitled to an evidentiary hearing on
his motion for leave, this Court has held as follows:
[A] defendant is entitled to such a hearing if he submits “documents
that on their face support his claim that he was unavoidably prevented from
timely discovering the evidence” at issue. State v. York (Feb. 18, 2000),
Greene App. No. 99-CA-54, 2000 WL 192433, citing State v. Wright (1990),
67 Ohio App.3d 827, 828, 588 N.E.2d 930; see, also, State v. Mitchell,
Montgomery App. No. 19816, 2004-Ohio-459, 2004 WL 225464, ¶ 7- 10
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(finding affidavits sufficient to warrant a hearing on whether the defendant
was unavoidably prevented from discovering the facts upon which his request
for a new trial relied). Notably, the documents at issue in York and Wright
were affidavits from prosecution witnesses recanting their trial testimony
against the defendant. State v. McConnell, 170 Ohio App. 3d 800,
2007-Ohio-1181, 869 N.E.2d 77, ¶ 19 (2d Dist.).
{¶ 10} “If it is not found that the defendant was unavoidably prevented from
discovering the new evidence or from filing his motion for a new trial, the trial court is
precluded from considering the untimely motion. State v. Hall (1995), 106 Ohio App.3d
183,191; State v. Pinkerman (1993), 88 Ohio App.3d 158, 161, 623 N.E.2d 643.” State v.
Wilson, 2d Dist. Montgomery No. 17515, 1999 WL 173551, * 1 (Mar. 31, 1999).
{¶ 11} We initially note that Isa’s conviction was affirmed over 5 years ago. He
has since filed multiple pro se motions below regarding his sentence, in addition to his pro se
Motion for Leave and accompanying affidavit. There is no evidence of Isa’s alleged
inability to understand the English language, nor did he assert such an inability in his Motion
for Leave.
{¶ 12} Most importantly, as the trial court noted, there is no suggestion that Isa was
prevented from discovering the (hearsay) evidence, presented in his affidavits, allegedly
obtained in the course of the investigation conducted by him, Sylvia Isa and “Ace
Investigations.” As the trial court noted, Isa acknowledges that one of his employees
disclosed allegedly exculpatory information in March, 2009, over four years ago. In
contrast, we note that in Wright, upon which Isa relies in part, Wright submitted the affidavit
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of a witness for the State in which the witness recanted his trial testimony and alleged
Wright was not guilty. This Court concluded that it “was error for the trial court to
determine, without a hearing, that a defendant has failed to establish by clear and convincing
evidence that he was unavoidably prevented from the prior discovery of the evidence, when
documents submitted by the defendant, on their face, support his claim that he was prevented
from earlier discovering the evidence.” Id., 828. Isa’s reliance upon Wright is misplaced.
{¶ 13} Finally, Isa raised ineffective assistance of trial counsel on direct appeal,
and there is nothing before us to support his assertion that he has newly discovered evidence
of ineffective assistance of defense counsel. Regarding his assertions that appellate counsel
was ineffective, such arguments are not properly raised in his motion for leave. See App.R.
26(B). Isa’s motion for leave is untimely, his affidavits do not on their face support his
claim that he was unavoidably prevented from timely discovering the alleged grounds for his
motion, thus we cannot find that Isa was entitled to an evidentiary hearing, and we conclude
that the trial court was precluded from considering Isa’s untimely motion for leave. Isa’s
assigned errors are overruled.
{¶ 14} Finally, we note that in Isa’s Reply brief, he asserts three additional
assignments of error, namely that his conviction is not supported by the sufficiency of the
evidence and is against the manifest weight evidence; that the trial court erred in admitting
hearsay at trial; and that the trial court committed plain error in sentencing him for allied
offenses of similar import. Since these assignments of error are not properly before us, we
shall not consider them. The purpose of a reply brief is to respond to arguments raised by
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the State, not advance additional assignments of error. State v. Clark, 38 Ohio St.3d 252,
258, 527 N.E.2d 844 (1988).
{¶ 15} Having overruled Isa’s assigned errors, the judgment of the trial court is
affirmed.
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FROELICH, P.J. and WELBAUM, J., concur.
Copies mailed to:
Jane A. Napier
Abraham Isa
Hon. Nick A. Selvaggio