State v. Ojile, 2021 Ohio 2955

Ojile was tried (with codefendant Erkins) for multiple robberies; a jailhouse informant, Tyrone Tanks, testified that Ojile confessed; Hoover testified for the state after a plea.
Ojile was convicted on multiple counts; direct appeal and a 2016 postconviction appeal were decided against him in part, but some relief later altered one conviction.
In 2011 Ojile (while represented by counsel) filed a pro se presentence motion for a new trial alleging prosecutorial misconduct tied to Tanks and Hoover testimony; counsel did not join that motion.
Between 2013 and 2019 Erkins provided affidavits shifting blame and exonerating Ojile for at least one robbery; Tanks later recanted his trial testimony in an affidavit (August 2018); Erkins furnished a fuller affidavit in December 2019.
Ojile filed motions in 2018 and January 2020 seeking leave under Crim.R. 33(B) to file a new-trial motion based on newly discovered evidence (Erkins’s and Tanks’s affidavits); he also filed a 2020 motion attempting to “relate back” and amend his 2011 pro se motion.
The trial court denied all pending motions in September 2020; on appeal the court affirmed denial of the relating-back amendment but reversed the denial of the Crim.R. 33(B) motion for leave and remanded for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ojile’s 2020 motion could “relate back” to his 2011 pro se new-trial motion so it need not be timely filed	The 2011 pro se filing was invalid because Ojile was represented by counsel and cannot proceed pro se contemporaneously; thus the 2020 attempt to amend/relate back need not be honored	The 2011 pro se motion was never ruled on or answered, so the 2020 motion may relate back to that timely filing	Court: Affirmed trial court — relating-back amendment not allowed because hybrid representation is not permitted and the 2010/2011 pro se motion was ineffective
Whether the trial court erred in denying leave under Crim.R. 33(B) to file a new-trial motion based on newly discovered evidence (Tanks and Erkins affidavits)	The State argued the motion was untimely and the movant failed to justify delay	Ojile argued the affidavits constituted newly discovered evidence and that he was unavoidably prevented (despite reasonable diligence) from discovering/presenting the evidence within 120 days	Court: Reversed trial court — appellate court found clear and convincing evidence Ojile was unavoidably prevented from timely presenting the evidence and that the delay was reasonable; remanded for further proceedings

State v. Smith, 99 N.E.3d 1230 (1st Dist. 2017) (no right to hybrid representation; pro se filings by a defendant represented by counsel are not permitted)
State v. Thompson, 33 Ohio St.3d 1, 514 N.E.2d 407 (Ohio 1987) (same: hybrid representation not allowed)
State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (Ohio 1990) (Crim.R. 33(B) exception: leave may be granted if movant proves unavoidable prevention by clear and convincing evidence)
State v. Mathis, 134 Ohio App.3d 77, 730 N.E.2d 410 (1st Dist. 1999) (elements of unavoidable prevention: did not know of ground within 120 days and could not have learned it with reasonable diligence)
State v. Condon, 157 Ohio App.3d 26, 808 N.E.2d 912 (1st Dist. 2004) (clarifies standards for Crim.R. 33(B) and unavoidable-prevention analysis)
State v. Thomas, 93 N.E.3d 227 (1st Dist. 2017) (movant must show any post-discovery delay in seeking leave was reasonable under the circumstances)