State v. McIntyre, 2011 Ohio 3668

McIntyre, convicted in Summit County Common Pleas for aggravated burglary and felonious assault, seeks leave to file a motion for new trial 19 years later based on a witness recantation.
Witness affidavit alleges police and prosecution encouraged and prepared him to lie at trial.
Trial court denied the motion, calling the affidavit highly suspicious and finding no clear and convincing proof of unavoidable delay in discovery.
Rule 33(B) requires a 120-day filing window for newly discovered evidence, with an exception for unavoidably prevented discovery shown by clear and convincing proof.
On appeal, McIntyre argued he could not contact the witness earlier due to incarceration and parole status, and later discovered the witness was incarcerated.
Appellate court held McIntyre failed to show he was unavoidably prevented from discovering the evidence within 120 days and failed to act with reasonable diligence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether McIntyre complied with the 120-day deadline and proven unavoidably prevented discovery.	McIntyre claims unavoidably prevented discovery.	State contends no clear and convincing proof of unavoidable delay.	No; failed to show unavoidably prevented discovery within 120 days.
Whether arguments raised for the first time on appeal merit consideration and affect relief.	McIntyre asserted new factual theories in appellate brief.	Courts decline to consider new issues not raised in trial court.	Arguments not preserved in trial court were not considered; relief denied even if considered.
If considered, would incarceration status have enabled timely discovery and contact with the witness.	Parole and later incarceration prevented contact prior to 2008-2009.	Even with parole gaps, contact could have occurred earlier with due diligence.	Even assuming contact was delayed due to incarceration, McIntyre failed to show timely and diligent pursuit.

State v. Covender, 2008-Ohio-1453 (9th Dist.) (clear and convincing standard for unavoidably prevented discovery)
State v. Mathis, 1999 (Ohio App. 3d) (establishes standard for clear and convincing proof in new trial motions)
State v. Cleveland, 2009-Ohio-397 (9th Dist.) (hearing prerequisite based on face-supporting documents)
State v. Shakoor, 2010-Ohio-6386 (7th Dist.) (timeliness and due diligence in seeking leave to file a motion for new trial)
State v. Wilson, 2009-Ohio-7035 (2d Dist.) (contactable witness; years of delay undermines diligence)
State v. Bluford, 2004-Ohio-4088 (8th Dist.) (incarceration does not automatically excuse delay; need timely action)
State v. Holmes, 2006-Ohio-1310 (9th Dist.) (timing of discovery burden under Crim. R. 33(B))