State v. Yuschak
2019 Ohio 4394
Ohio Ct. App.2019Background:
- On March 20, 2014 a man (the victim) was shot after driving the defendant Terry Yuschak’s daughter to meet a buyer; Yuschak had arranged the meeting to expose his daughter’s drug activity.
- Yuschak was indicted and convicted by a jury of attempted murder, felonious assault, and having weapons while under disability; sentence: aggregate 10 years; direct appeal affirmed.
- Post-conviction relief petition (Nov. 2016) was denied and an appeal was dismissed as untimely.
- In March 2018 Yuschak filed a pro se motion for leave to file a delayed motion for new trial, claiming newly discovered evidence (an affidavit from “Alicia T.” and a police incident report showing texts from Mason Braun saying “I just shot someone”) that allegedly implicates Braun as the shooter.
- The trial court denied leave to file the delayed motion on July 16, 2018 and denied a construed motion for reconsideration on August 22, 2018; this Court later granted leave for a delayed appeal of the July 16 entry but dismissed the attempted appeal of the August 22 entry.
- The Ninth District affirmed the denial of leave to file the delayed motion for new trial and dismissed the attempted appeal from the reconsideration order.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in denying leave to file a delayed motion for new trial based on newly discovered evidence | Yuschak: Clear and convincing proof he was unavoidably prevented from discovering Alicia T.’s testimony and Braun’s incriminating texts within 120 days | State: The police report with the texts was available earlier; Yuschak had the means to contact Alicia T.; affidavits lack detail on diligence and timing | Court affirmed denial: no abuse of discretion; evidence did not show unavoidable prevention and was available earlier |
| Whether the appeal from the trial court’s denial of reconsideration is appealable | Yuschak: appealed the August 22 denial | State: Orders on motions for reconsideration of final judgments are nullities and not appealable | Appeal dismissed for lack of jurisdiction |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse-of-discretion standard explained)
- Cross v. Ledford, 161 Ohio St. 469 (1954) (definition of clear and convincing evidence)