2023 Ohio 3582
Ohio Ct. App.2023Background
- In May 2018 Buddy Struckman was convicted after a jury trial of two counts of unlawful possession of dangerous ordnance (an automatic firearm and a suppressor) found in a safe in a closet of 622 Maple Street. He was sentenced to seven years.
- In a 2017 misdemeanor trial relating to items found on a table in the same residence, Struckman was acquitted after the trial court determined other people may have had access to the area where the drugs were found.
- This court previously affirmed Struckman’s convictions on appeal, finding sufficient evidence of constructive possession.
- In October 2022 Struckman filed a Crim.R. 33(B) motion for leave to file an untimely new-trial motion based on allegedly newly discovered evidence (appellate opinion, trial transcripts, arrest affidavit, exhibit list), arguing others had access to the home and asserting double-jeopardy / fair-trial violations.
- The common pleas court denied both his motion for leave and his motion for summary judgment (seeking a ruling on leave). Struckman appealed, challenging those denials and arguing constitutional violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in denying Crim.R. 33(B) leave to file an untimely new-trial motion | State: Struckman failed to show he was "unavoidably prevented" from discovering the grounds for a new-trial motion within 120 days; attached materials were available earlier | Struckman: The attached evidence (trial transcripts, exhibit list, arrest affidavit, prior acquittal) showed others had access to the house and was newly discovered supporting a new trial and double-jeopardy claim | Affirmed: Abuse-of-discretion review; Struckman did not prove unavoidable prevention—materials were known or available, and the appellate opinion is not "new evidence." |
| Whether the trial court erred by denying Struckman’s motion for summary judgment (seeking grant of leave) | State: The summary-judgment motion was essentially a request to grant leave; denial was proper because threshold for leave was unmet | Struckman: Court should not have considered the state's untimely response and should have granted summary judgment in his favor | Affirmed: Denial proper; regardless of the state’s response, Struckman failed to show unavoidable prevention required to grant leave |
| Whether the court could reach the merits (double jeopardy, due process, fair trial) absent leave | State: Untimely new-trial motion is not before the court until leave is granted | Struckman: Merits show constitutional violations warrant a new trial | Not reached: Court declined to address merits—under Bethel the merits cannot be considered until leave to file an untimely new-trial motion is granted |
Key Cases Cited
- State v. Hatton, 169 Ohio St.3d 446 (abuse-of-discretion review of Crim.R. 33(B) leave decisions)
- State v. Bethel, 167 Ohio St.3d 362 (an untimely new-trial motion is not before the court until leave to file is granted)
- State v. Walden, 19 Ohio App.3d 141 (definition of "unavoidably prevented"—no knowledge and could not have learned with reasonable diligence)
- State v. Struckman, 159 Ohio St.3d 1446 (prior appeal affirming Struckman’s convictions; appellate opinion does not constitute newly discoverable evidence)