2016 Ohio 4979
Ohio Ct. App.2016Background
- Abraham Isa was convicted in 2007 of multiple counts of gross sexual imposition and rape; sentence aggregated to 24.5 years.
- Direct appeal and multiple post-conviction/resentencing motions were litigated; this appeal concerns denial of a 2015 Crim.R. 33 motion for new trial.
- Isa asserted newly discovered evidence that his two sons, not he, committed the offenses and induced victims to testify; he attached affidavits from two former employees and a 2007 written witness statement.
- Isa alternatively argued ineffective assistance of trial counsel for failing to secure an Arabic interpreter. The trial court treated the ineffective-assistance claim as a post-conviction petition and denied the new-trial motion as untimely and not showing unavoidable prevention.
- The trial court found Isa failed to show by clear and convincing evidence that he was unavoidably prevented from discovering the allegedly new witnesses within Crim.R. 33’s 120-day period; it also held the interpreter claim barred by res judicata and statutory time limits.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Isa) | Held |
|---|---|---|---|
| 1. Whether Isa received ineffective assistance for failure to request an Arabic interpreter | State: Claim is untimely/post-conviction and barred by res judicata; no record support showing language barrier | Isa: Counsel was ineffective for not obtaining an interpreter; he didn’t understand proceedings | Court: Claim barred by res judicata and untimely under R.C. 2953.21/23; overruled |
| 2. Whether the trial court had jurisdiction to consider Isa’s late post-conviction claim | State: Trial court correctly applied R.C. 2953.23 and found Isa did not meet the exceptions for late filing | Isa: He addressed statutory requirements and the court incorrectly dismissed for lack of jurisdiction | Court: Trial court correctly concluded Isa did not satisfy R.C. 2953.23(A) exceptions; overruled |
| 3. Whether Isa showed he was unavoidably prevented from discovering newly discovered evidence within Crim.R. 33(B) | State: Affidavits and documents do not show unavoidable prevention or reasonable diligence | Isa: He only recently located former employees (witnesses) in prison and recently received a 2007 statement in the mail | Court: Trial court did not abuse discretion; Isa failed to show, by clear and convincing proof, unavoidable prevention to bring an untimely Crim.R. 33 motion; overruled |
Key Cases Cited
- State v. Perry, 10 Ohio St.2d 175 (1967) (establishes res judicata bar to post-conviction claims that could have been raised on direct appeal)
- AAAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157 (1990) (defines abuse of discretion standard)
- State v. Walden, 19 Ohio App.3d 141 (1984) (defines "unavoidably prevented" for late Crim.R. 33 filings)
- State v. Parker, 178 Ohio App.3d 574 (2008) (discusses Crim.R. 33(A)(6) and timing/leave-to-file standards for newly discovered evidence)
- State v. McConnell, 170 Ohio App.3d 800 (2007) (holding that a defendant is entitled to a hearing on a motion for new trial only if submitted documents on their face support unavoidable prevention)