State v. Isa
2014 Ohio 139
Ohio Ct. App.2014Background
- Defendant Abraham Isa was convicted of 13 counts of gross sexual imposition and 2 counts of rape relating to five female employees; he received an aggregate 24.5-year sentence and his conviction was affirmed on direct appeal.
- Over several years Isa filed multiple pro se post-conviction motions challenging sentence computation, post-release control, and counsel effectiveness; those were previously denied or affirmed on appeal.
- Isa filed a pro se Motion for Leave (to file a delayed motion for new trial) more than four years after a prospective witness first suggested Isa’s son might be responsible; the motion relied on newly obtained affidavits from Isa, his wife, and an investigator asserting the sons committed the crimes and that trial counsel was ineffective.
- The trial court denied the Motion for Leave, finding Isa failed to show by clear and convincing evidence that he was unavoidably prevented from discovering the alleged new evidence within the 120-day window under Crim.R. 33(A)(6).
- On appeal, Isa argued (1) he was unavoidably prevented from timely filing due to language barrier and ineffective assistance of counsel, (2) the affidavits constituted newly discovered evidence warranting a new trial and an evidentiary hearing, and (3) the motion was timely or required a hearing; the appellate court rejected these arguments and affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Isa) | Held |
|---|---|---|---|
| Whether Isa showed by clear and convincing evidence he was unavoidably prevented from timely filing a motion for new trial under Crim.R. 33(A)(6) | The record lacks proof Isa was unavoidably prevented; he knew of potential exculpatory lead in 2009 and offered no convincing excuse for delay | Isa asserted newly discovered evidence (investigator affidavits) and claimed inability to understand English and ineffective counsel prevented timely discovery | Court held Isa failed to show unavoidable prevention; motion untimely and properly denied |
| Whether Isa’s affidavits on their face warranted an evidentiary hearing on unavoidable prevention | The affidavits are hearsay, conclusory, and do not on their face establish unavoidable prevention or recantation comparable to cases warranting hearings | Isa argued affidavits establish newly discovered evidence and justify a hearing | Court held affidavits did not on their face compel a hearing; no entitlement to evidentiary hearing |
| Whether claims of ineffective assistance of appellate counsel could support the delayed motion | State argued ineffectiveness of appellate counsel is not a ground for Crim.R. 33 leave and Isa previously raised trial counsel effectiveness on direct appeal | Isa claimed both trial and appellate counsel were ineffective, contributing to delay | Court held appellate-ineffectiveness claims are not properly raised in motion for leave under App.R. 26(B); no newly discovered evidence shown |
| Whether additional issues raised in reply (sufficiency, weight, hearsay, allied offenses) could be considered on appeal | State noted those issues were not properly raised in the appeal | Isa attempted to advance them in his reply brief | Court declined to consider new assignments raised in reply; affirmed denial |
Key Cases Cited
- Walden v. State, 19 Ohio App.3d 141 (1984) (defines "unavoidably prevented" standard for delayed new-trial motions)
- Wright v. State, 67 Ohio App.3d 827 (1990) (affidavits recanting prosecution testimony may require an evidentiary hearing)
- Hall v. State, 106 Ohio App.3d 183 (1995) (if unavoidable-prevention not shown, court may not consider untimely new-trial motion)
- McConnell v. State, 170 Ohio App.3d 800 (2007) (discusses standards for affidavits and evidentiary hearings on delayed new-trial motions)
- Parker v. State, 178 Ohio App.3d 574 (2008) (discusses Crim.R. 33(A)(6) requirements and R.C. 2945.80)
- State v. Clark, 38 Ohio St.3d 252 (1988) (reply brief may not raise new assignments of error)