State v. Dues
2017 Ohio 6983
Ohio Ct. App.2017Background
- On July 19, 2012, officers executed an arrest warrant at Dues’s Richmond Heights apartment for a misdemeanor assault; while outside they announced their presence, heard commotion, and observed activity from an adjacent neighbor’s balcony.
- Detective Vargo saw a man (codefendant Bullitt) throw a box off Dues’s balcony; officers then entered and found Dues on the couch and arrested both men.
- Police recovered approximately 100 grams of crack cocaine from the box and $22,000 in cash nearby.
- Dues was convicted in 2013 of multiple drug offenses and sentenced to 11 years; this court affirmed in his direct appeal and the Ohio Supreme Court declined review.
- In 2016 Dues moved for leave to file a delayed Crim.R. 33 motion for a new trial, claiming newly discovered evidence: an allegedly invalid arrest warrant underlying the July 19, 2012 entry.
- The trial court denied leave without a hearing; on appeal the court affirmed, finding Dues failed to show he was unavoidably prevented from discovering the warrant within Crim.R. 33’s 120-day period and noting the trial record showed defense counsel knew of and referenced the warrant pretrial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant was entitled to leave to file a delayed new-trial motion based on newly discovered evidence (an allegedly invalid arrest warrant) | State argued Dues failed to show by clear and convincing evidence that he was unavoidably prevented from discovering the warrant within 120 days; discovery and pretrial record showed counsel knew of the warrant | Dues argued the arrest warrant was newly discovered and invalid, which would warrant a new trial | Court held Dues failed to show unavoidable prevention; trial record showed knowledge of the warrant, so denial of leave was not an abuse of discretion |
| Whether denial of leave without an evidentiary hearing violated due process | State argued no hearing required where defendant did not present prima facie evidence of unavoidable delay | Dues argued he was entitled to a hearing to prove the warrant was newly discovered and invalid | Court held no hearing required because Dues did not submit documents establishing unavoidable delay and trial counsel had been aware of the warrant |
Key Cases Cited
- State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947) (elements for granting a new trial based on newly discovered evidence)
- State v. Hawkins, 66 Ohio St.3d 339, 612 N.E.2d 1227 (1993) (trial court’s denial of a new-trial motion reviewed for abuse of discretion)
- State v. Mathis, 134 Ohio App.3d 77, 730 N.E.2d 410 (1999) (requirements for leave to file a delayed Crim.R. 33 motion)
- State v. Walden, 19 Ohio App.3d 141, 483 N.E.2d 859 (1984) (definition of "unavoidably prevented" to file a timely new-trial motion)