State v. Barrow
2016 Ohio 2839
Ohio Ct. App.2016Background
- Richard Barrow was convicted of attempted murder and having a weapon while under disability and sentenced to nine years; this court previously affirmed his conviction on direct appeal.
- Barrow filed a Crim.R. 33(B) motion for leave to file a delayed motion for a new trial, claiming he was "unavoidably prevented" from timely filing because trial counsel withdrew after sentencing and did not forward the case file or trial transcripts.
- Barrow asserted he did not receive transcripts until appellate counsel emailed them on September 26, 2014, and only then discovered alleged prosecutorial misconduct, improperly admitted other-acts evidence, insufficiency of evidence, and ineffective assistance of counsel.
- The motion for leave included two documents: appellate counsel’s September 26, 2014 letter about emailing transcripts and a December 14, 2014 letter from Barrow requesting a grievance against trial counsel; the record lacked the notarized affidavit Barrow referenced.
- The trial court denied leave to file a new-trial motion; Barrow appealed the denial. The appellate court affirmed, concluding no new, material evidence was shown, no hearing was required, and findings of fact/conclusions were not required.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Barrow) | Held |
|---|---|---|---|
| 1. Whether Barrow demonstrated "unavoidable prevention" to obtain leave to file an untimely Crim.R. 33 motion | Leave properly denied because Barrow produced no new evidence material to guilt/innocence | Barrow argued counsel’s withdrawal and delay in providing transcripts unavoidably prevented him from timely discovering new evidence | Court held Barrow produced no new evidence; documents only showed when he received transcripts and dissatisfaction with counsel, so leave denial was not an abuse of discretion |
| 2. Whether the trial court was required to hold an evidentiary hearing on the leave motion | No hearing required because Barrow’s submissions did not identify newly discovered evidence meeting the six-part test | Barrow sought a hearing, asserting affidavit would show unavoidable delay and new evidence in transcripts | Court held an evidentiary hearing was not warranted: alleged errors were trial-record matters (discoverable from transcripts) and not newly discovered evidence likely to change the result |
| 3. Whether the trial court had to issue findings of fact and conclusions of law when denying leave | Findings not required on denial of Crim.R. 33 leave | Barrow argued the court should have issued findings/conclusions | Court held no duty to issue findings or conclusions when denying Crim.R. 33 motion |
| 4. Whether appellate counsel’s failure to raise certain issues supports relief here | Claims of ineffective appellate counsel are not cognizable in this procedural posture | Barrow argued appellate counsel was ineffective for not raising transcript-based errors on direct appeal | Court noted such claims must be raised in a motion to reopen under App.R. 26(B) (not in this Crim.R. 33 leave motion) |
Key Cases Cited
- Schiebel v. Ohio, 55 Ohio St.3d 71 (Crim.R. 33 abuse-of-discretion standard)
- Walden v. State, 19 Ohio App.3d 141 (definition of "unavoidably prevented" for new-trial motions)
- McConnell v. Ohio, 170 Ohio App.3d 800 (threshold for hearing on leave—documents must facially support unavoidable delay)
- Perry v. State, 10 Ohio St.2d 175 (res judicata bars claims that were or could have been raised on direct appeal)
- Collins v. Pokorny, 86 Ohio St.3d 70 (no requirement for trial-court findings when denying Crim.R. 33 motion)
- Murnahan v. State, 63 Ohio St.3d 60 (ineffective assistance of appellate counsel must be raised via motion to reopen appeal)