State v. Apanovitch
2020 Ohio 4217
Ohio Ct. App.2020Background
- In 1984 Anthony C. Apanovitch was convicted of aggravated murder, aggravated burglary, and two counts of rape; he received a death sentence (later litigated extensively).
- Autopsy slides (oral and vaginal) were located in 1991; limited testing then yielded a partial male profile from an oral slide (Item 2).
- Further testing by FSA in 2006 produced a more complete male DNA profile from the oral slide; comparison in 2007 showed Apanovitch could not be excluded.
- In 2012 Apanovitch filed a fourth postconviction petition relying on DNA testing of a vaginal slide; an expert (Dr. Staub) testified the vaginal slide excluded Apanovitch, leading the trial court to acquit one rape count, dismiss the other, and grant a new trial on murder/burglary under Crim.R. 33.
- The Ohio Supreme Court vacated those postconviction rulings for lack of jurisdiction and remanded for limited proceedings; on remand the trial court treated the postconviction submission as a Crim.R. 33 motion for new trial but denied relief.
- The court of appeals affirmed, holding Apanovitch never sought the leave required by Crim.R. 33(B) to file a delayed new-trial motion (the 120-day deadline long having passed), and therefore the trial court properly denied the untimely motion; the panel did not reach the merits.
Issues
| Issue | State's Argument | Apanovitch's Argument | Held |
|---|---|---|---|
| Whether failure to file a motion for leave under Crim.R. 33(B) is fatal to an untimely new-trial motion | Failure to obtain leave is a procedural prerequisite; absence of leave is fatal | Parties’ stipulation that Crim.R. 33 applies to the postconviction proceeding made separate leave unnecessary | Affirmed: failure to seek leave under Crim.R. 33(B) is fatal; stipulation did not excuse the rule requirement |
| Whether Apanovitch was “unavoidably prevented” from discovering evidence so as to allow delayed filing | Evidence was discovered earlier (2008) and delay to 2012 was unexplained; no timely leave motion | He was unavoidably prevented and filed at earliest practicable time given protracted litigation | Held against Apanovitch — he did not satisfy Crim.R. 33(B) prerequisites or explain delay; trial court properly required leave |
| Whether the newly discovered vaginal DNA evidence discloses a strong probability of a different result under Crim.R. 33(A)(6) | FSA’s oral-slide DNA strongly inculpates Apanovitch, undermining claim that vaginal evidence would change result | Dr. Staub’s analysis excluded Apanovitch from vaginal slide and supports a different result | Appellate court did not reach merits (affirmed on procedural grounds); trial court considered merits and denied new trial because oral DNA was highly inculpatory |
| Whether the trial court could consider the untimely Crim.R. 33 motion absent court-ordered leave | Leave must precede merits review; courts have ruled failure to seek leave bars consideration | Stipulation and prior proceedings meant the motion was properly before the court | Court held leave was required and absence thereof justified denial; stipulation did not waive leave requirement |
Key Cases Cited
- State v. Hawkins, 66 Ohio St.3d 339 (1993) (sets standards for new trial based on newly discovered evidence)
- State v. Peagler, 76 Ohio St.3d 496 (1996) (appellate court may affirm on grounds different from trial court if record supports that ground)
- State v. Apanovitch, 155 Ohio St.3d 358 (2018) (Ohio Supreme Court vacated trial-court postconviction rulings for lack of jurisdiction and explained Crim.R. 33 issues)
- State v. Walden, 19 Ohio App.3d 141 (10th Dist.) (defines "unavoidably prevented" for delayed new-trial motions)
- State v. Roberts, 141 Ohio App.3d 578 (6th Dist.) (holds courts should not consider untimely new-trial motions absent leave)