State v. Clark, 2012 Ohio 2434

Clark was convicted of complicity to murder and complicity to knowingly discharging a firearm into a habitation with firearms specifications; sentenced to 25 years to life; affirmed on direct appeal.
In 2009, Clark filed a pro se motion for new trial alleging newly discovered evidence, but provided no specifics or affidavit and the trial court did not rule.
In 2010, Clark filed another pro se motion for new trial based on new evidence with a letter from Gerald Johnson; the letter was not an affidavit and the motion was denied.
In 2011, through counsel, Clark moved for leave to file a delayed motion for new trial, attaching Johnson’s affidavit stating he witnessed the shooting.
A hearing was held; the court found Clark failed to prove unavoidable delay by clear and convincing evidence and overruled the motion for leave, which led to a timely appeal challenging due process.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion in denying leave to file a delayed motion for new trial based on newly discovered evidence	Clark argues due process was violated and he demonstrated unavoidable delay.	State argues delay was not unavoidable and evidence could have been discovered earlier; no prejudice shown.	No abuse of discretion; leave denied; timely denial affirmed

State v. Hawkins, 66 Ohio St.3d 339 (1993) (abuse of discretion standard for new-trial discretionary rulings)
State v. Adams, 62 Ohio St.3d 151 (1980) (clear and convincing burden for unavoidable delay in Crim.R. 33(B))
State v. Lordi, 149 Ohio App.3d 627 (2002) (need for leave before addressing merits in delayed-new-trial motions)
State v. Walden, 19 Ohio App.3d 141 (1984) (unavoidable delay requires inability to discover grounds with reasonable diligence)
State v. Fortson, 2003-Ohio-5387 (8th Dist. 2003) (burden on defendant to prove unavoidably prevented from timely discovery)