State v. Clement, 2012 Ohio 3818

Defendant-appellant Reginald Clement was convicted in February 2010 of aggravated murder, murder, aggravated robbery, kidnapping, and having a weapon while under disability.
This court previously affirmed the conviction on direct appeal and denied a motion to reopen the appeal in 2011.
On July 8, 2011, Clement moved for leave to file a motion for a new trial or, alternatively, a petition for postconviction relief, based on a co-defendant Williams’s recantation affidavit.
Crim.R. 33(B) requires a new-trial motion within 14 days after verdict (or 120 days for newly discovered evidence) and leave if time-barred, with a showing of unavoidably prevented discovery.
R.C. 2953.21 and 2953.23 impose a 180-day deadline after transcript filing for postconviction relief, with a narrow equitable exception requiring unavoidably prevented discovery and a strong showing of a reasonable probability of guilt error, which Clement failed to make.

Issue	Plaintiff's Argument	Defendant's Argument	Held
timeliness of a motion for a new trial	Clement failed to file within 120 days; he seeks leave showing unavoidable delay.	Clement had precedent to obtain leave due to late discovery of Williams’s affidavit.	Trial court did not abuse; no clear and convincing proof of unavoidable delay.
timeliness of postconviction relief petition	Transcript filed May 3, 2010; petition filed July 11, 2011; argues exception applies.	No showing of unavoidable prevented discovery or retroactive right; no jurisdiction.	Petition untimely; court lacked jurisdiction to entertain.

State v. Clement, 8th Dist. No. 94869, 2011-Ohio-1555 (Ohio-2011) (direct-appeal affirmation; reopening denied on remand timing)
State v. Johns, 8th Dist. No. 93226, 2010-Ohio-162 (Ohio-2010) (postconviction timeliness jurisdictional rule)