State v. Evans
2010 Ohio 5838
Ohio Ct. App.2010Background
- Evans was convicted by jury in Pickaway County Common Pleas Court of two burglaries, two thefts, failure to comply with police, safe cracking, and receiving stolen property; aggregate sentence 18 1/2 years with some counts consecutive.
- Trial court denied Evans's April 13, 2009 motion for a new trial; motion grounded on ineffective assistance of counsel, lack of subject matter jurisdiction due to alleged missing mens rea, and sentencing authority overreach.
- Appellant was previously tried in 2006; the jury found him guilty on all counts and the court imposed an 18 1/2 year aggregate sentence; this court affirmed in State v. Evans, 2007-Ohio-6575.
- The trial court ruled Evans’s Crim.R. 33(B) motion was untimely and thus dismissed; it also rejected the mens rea argument as voidable and barred by res judicata.
- On appeal, the Fourth District Court of Appeals affirmed, holding the motion for a new trial was properly dismissed for timeliness and that res judicata barred challenges that could have been raised on direct appeal.
- The court discussed that failure to specify mens rea does not void a judgment but is subject to later challenge as voidable, and declined to address it further due to res judicata and lack of timely raising on direct appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly denied a delayed Crim.R. 33(B) motion for new trial | Evans argues the motion should be considered despite untimeliness due to unavoidably prevented filing. | State contends the motion was untimely and not saved by unavoidably prevented filing; thus jurisdictional prerequisites fail. | Motion properly dismissed for timeliness; unavoidably prevented filing not shown. |
| Whether indictment defect on mens rea voids the judgment | Evans contends lack of specified mens rea renders the judgment void. | State asserts mens rea defects render judgments voidable, not void, and the issue is barred by res judicata. | Indictment defect is voidable, not void; issue barred by res judicata. |
Key Cases Cited
- State v. Brown, 2010-Ohio-4599 (Ohio App. Dist.) (Crim.R. 33 motions must be timely; delayed filing allowed only with unavoidably prevented filing)
- State v. Pinkerman, 88 Ohio App.3d 158 (1993) (unavoidably prevented filing prerequisite for late Crim.R. 33 motion)
- State v. Bialec, 2006-Ohio-1585 (Common Pleas/Appeals (Concurrence)) (unavoidably prevented filing as prerequisite to late filing)
- State v. Tucker, 2010-Ohio-2642 (Ohio App.) (mens rea defects are voidable not void; res judicata applies)
- State v. Turner, 2008-Ohio-6648 (Ohio App.) (res judicata bars late challenges not raised on direct appeal)