State v. Smith, 2020 Ohio 6718

In 2007 Roger Smith and his brother Ricky were tried jointly for the murder of Rodney Gorley; eyewitnesses at the scene identified the Smith brothers and denied being intimidated.
Physical evidence: a knife blade and handle were recovered with Gorley’s blood; blood also found on Roger Smith’s clothing/shoes; Ricky was forensically excluded but Roger could not be excluded as a source of a blood mixture.
A jury convicted Roger Smith of murder; he received concurrent terms of 15 years to life; direct appeals and resentencing occurred, and prior postconviction and late new-trial motions were denied.
In 2018–2019 Smith obtained an affidavit from eyewitness Rasheka Smith asserting she had been coerced into testifying and that poor lighting and alcohol impaired her view; Smith filed a 2019 Crim.R. 33(B) motion for leave to file a new-trial motion (grounds: prosecutorial misconduct, irregularity, ineffective assistance).
The trial court denied leave without an evidentiary hearing; Smith appealed, arguing the court abused its discretion by not holding a hearing and that he was entitled to a new trial on the asserted grounds.
The appellate court affirmed: Smith failed to prove by clear and convincing evidence that he was "unavoidably prevented" from timely filing a new-trial motion, so no hearing was required; the court also declined to address the merits because the appealed judgment only denied leave.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion by denying Crim.R. 33(B) leave without an evidentiary hearing	The State: affidavit and record did not show unavoidable prevention; trial record already examined lighting and coercion allegations; no competent evidence requiring a hearing	Smith: Rasheka’s affidavit (received in Dec 2018) shows coercion and impaired sight and demonstrates he was unavoidably prevented from timely filing	The court held the supporting evidence did not establish unavoidable prevention by clear and convincing proof; no evidentiary hearing required and denial of leave was not an abuse of discretion
Whether Smith was entitled to a new trial on the asserted Crim.R. 33(A) grounds	The State: appellate review is limited to the judgment appealed (denial of leave); the trial court did not reach the merits, so appellate court lacks jurisdiction to address merits	Smith: merits should be reviewed and he should be granted a new trial based on the affidavit and alleged misconduct/ineffective assistance	The court held it lacked jurisdiction to consider the merits because the appealed judgment only denied leave to file a new-trial motion out of time

State v. Schiebel, 55 Ohio St.3d 71 (1990) (a reviewing court will not overturn a leave decision that is supported by some competent and credible evidence)