The Akron Legal News

No new trial for man convicted in Parsons Avenue stabbing death

JESSICA SHAMBAUGH
Special to the Legal News
Published: August 26, 2013

The 10th District Court of Appeals recently heard a case from Michael Gover requesting a new trial and post-conviction release after he was convicted of aggravated murder for stabbing a man to death in his van.

“Finding that the trial court did not abuse its discretion, defendant’s assignments of error are overruled and the judgment of the Franklin County Court of Common Pleas is affirmed,” 10th District John Connor wrote for the court.

In his opinion for the court, Judge Connor stated that Gover was first indicted in April 2005 in connection to the stabbing death of Jason Schmalenberger.

According to the facts of the case, Gover and three other men were riding in a car driven by Jerry Weakley on April 3, 2005.

The group was driving on a residential street near Parsons Avenue when a van driving the opposite direction swerved in their direction. Weakley avoided a collision, but Gover insisted on following the van, stating “Don’t nobody play with me” and threatening to “get” them, case summary states.

Weakley eventually caught up with the van near the intersection of Parsons Avenue and State Route 317, where his passengers got out of their car and approached the van.

Gover approached the driver’s side and started fighting with the driver, Schmalenberger, while another man held the passenger door shut.

At the time of the fight, the men believed it was a fist fight.

Schmalenberger’s passenger, Rick Rice, called 911 and immediately after the fight the men returned to Weakley’s car while Gover stated “I’m a killer, I’m a killer,” according to Weakley.

Rice told the court that Schmalenberger started to follow the car before saying “I’m not doing so good” and falling over, at which time Rice noticed several knife wounds.

Gover returned to Weakley’s car with a bloody knife and dropped it in a parking lot during a stop by local police.

The Franklin County Court of Common Pleas found Gover guilty of aggravated murder, tampering with evidence and a repeat violent offender specification.

It sentenced him to life without parole consecutive with a 10-year term for the RVO specification and a five-year term for tampering with evidence.

The 10th District affirmed the lower court’s judgment on direct appeal and Gover filed a petition for post-conviction relief and a new trial in June 2012. The trial court denied the motions and he appealed to the 10th District.

“We will not disturb a trial court’s decision granting or denying a Crim.R. 33 motion for new trial absent an abuse of discretion,” Judge Connor stated.

The judges found that Gover’s motion was filed well outside the 120-day period in which to make such a request and ruled that he failed to prove that he was unavoidably delayed.

Gover argued that he was prevented from discovering evidence of Rice’s 911 call but the judges found the call was referenced on direct appeal.

“In short, defendant failed to obtain leave of court or otherwise demonstrate that he was unavoidably prevented from discovering the evidence regarding the 911 call before filing his motion for new trial,” Judge Connor wrote.

Similarly, the judges found that his motion for post-conviction relief was not timely filed and rejected it.

“In the final analysis, the trial court properly denied defendant’s untimely motion for new trial and untimely petition for post-conviction relief.”

Judges Gary Tyack and Susan Brown joined Judge Connor to form the majority.

The case is cited State v. Gover, 2013-Ohio-3366.

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