State v. Noor, 2016 Ohio 7756

Noor and codefendant Ibrahim were charged with multiple felonies arising from a 2012 home invasion; Noor convicted at jury trial and, after appeal and partial remand for merger, was resentenced to an aggregate 65-year term.
Noor filed a pro se motion (Feb. 18, 2015) for leave to file a delayed Crim.R. 33 motion for new trial, claiming newly discovered evidence in the form of three affidavits that Ibrahim had filed in his postconviction petition.
Noor initially attached only excerpts and referenced Ibrahim’s filings; he later submitted photocopies of the affidavits and his own affidavit asserting their authenticity.
The affidavits alleged facts that, if believed, tended to show Ibrahim’s trial counsel failed to investigate witnesses who might have undermined the prosecution’s case (e.g., alleged victims saying no robbery occurred, attempted extortion claims).
The trial court denied leave to file the delayed new-trial motion, finding Noor failed to show (1) the affidavits constituted new evidence and (2) he was unavoidably prevented from discovering them within Crim.R. 33’s 120-day window.
Noor appealed, arguing the court abused its discretion in both respects; the appellate court affirmed.

Issue	State's Argument	Noor's Argument	Held
Whether the affidavits constitute "new evidence" warranting a delayed Crim.R. 33 motion	Affidavits relate to Ibrahim’s ineffective-assistance claim and do not qualify as new evidence for Noor	Affidavits are newly discovered material that call into question prosecuting witnesses and could change the outcome	Court assumed arguendo they might be "new evidence" but found Noor failed other threshold requirements and affirmed denial
Whether Noor was "unavoidably prevented" from discovering the affidavits within 120 days	Noor made no clear-and-convincing showing of unavoidable prevention; he admitted he did not seek the material and only found it incidentally later	Noor did not learn of Ibrahim’s postconviction filings until researching his appeal; thus he could not file timely	Court held Noor failed to prove unavoidable prevention by clear and convincing evidence and therefore denied leave to file a delayed new-trial motion

Schiebel v. Ohio, 55 Ohio St.3d 71 (1990) (abuse-of-discretion review for trial-court rulings on new trial motions)
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (definition of abuse of discretion)
Cross v. Ledford, 161 Ohio St. 469 (1954) (definition of clear-and-convincing evidence)
State v. Petro, 148 Ohio St. 505 (1947) (six-factor test for newly discovered evidence warranting new trial)
State v. Mathis, 134 Ohio App.3d 77 (1st Dist. 1999) (mere allegations of unavoidable prevention are insufficient)