State v. BialecState v. Bialec
Lead Opinion
{¶ 1} The state of Ohio appeals the trial court‘s granting defendant Edward Bialec‘s motion for a new trial, based on the motion being untimely filed. After reviewing the facts of the case and pertinent law, we affirm.
I.
{¶ 2} On March 2, 2005, after a bench trial, the court journalized an entry finding the defendant guilty of aggravated robbery in violation of
II.
{¶ 3} In its sole assignment of error, the state argues that “the trial court erred in granting defendant‘s motion for new trial which did not present new evidence and was filed outside the time requirements of
{¶ 4} The defendant filed a motion for a new trial based on
“A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights:
“* * *
“(4) That the verdict is not sustained by sufficient evidence or is contrary to law. If the evidence shows the defendant is not guilty of the degree of crime for which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict or finding accordingly, without granting or ordering a new trial, and shall pass sentence on such verdict or finding as modified.”
{¶ 5} Additionally,
“Application for a new trial shall be made by motion which, except for the cause of newly discovered evidence, shall be filed within fourteen days after the verdict was rendered, or the decision of the court where a trial by jury has been waived, unless it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from filing his motion for a new trial, in which case the motion shall be filed within seven days from the order of the court finding that the defendant was unavoidably prevented from filing such motion within the time provided herein.”
{¶ 6} The decision to grant or deny a motion for a new trial is within the competence and discretion of the trial court. We will not reverse the court‘s decision regarding a motion for a new trial absent an abuse of that discretion. State v. Hill (1992), 64 Ohio St.3d 313.
{¶ 7} The state argues that the defendant filed his motion outside the 14-day mandatory time period; thus, the trial court lacked jurisdiction to grant the motion. The defendant, in turn, argues that the court found by clear and convincing evidence that he was unavoidably prevented from filing the motion within the 14 days because he was involved in potential presentence plea negotiations with the state and two co-defendants, and his counsel believed that filing the motion would prejudice the ongoing negotiations. The state alleges that the defendant‘s argument fails for two reasons. First, the “unavoidably prevented” language in
{¶ 8} The state is incorrect in its assertion that only newly discovered evidence may unavoidably prevent a defendant from timely filing a motion for a new trial. The meaning of
{¶ 9} However, there are other permissible grounds for granting a new trial. The instant case is based on a motion for a new trial filed under
Judgment affirmed.
McMonagle, J., CONCURS IN JUDGMENT ONLY; Corrigan, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE CONCURRING OPINION.
Concurrence Opinion
{¶ 10} This appeal is before us solely on the jurisdictional question whether the court properly granted leave to file a delayed motion for a new trial under
{¶ 11} Bialec conceded that he did not file the motion within 14 days as required by
{¶ 12} This is a classic case of invited error. Having told the court it had no objection to the motion for a new trial being heard on its merits, the state cannot complain of error which it induced. See State v. Smith, 148 Ohio App.3d 274, 2002-Ohio-3114.
{¶ 13} None of this is to suggest that I agree in principle with the court‘s decision to grant a new trial. Bialec did not offer anything new to the court in his motion for a new trial. He simply relied upon evidence previously heard at trial. Indeed, it was the failed sentence negotiations that became the impetus for the motion for a new trial. The outcome of sentence negotiations did not, and could not, affect the outcome of trial because they are clearly outside the evidence which could have been admissible as a defense to the charged offenses. Nevertheless, we review a trial court‘s determination of a
{¶ 14} Likewise, I question the court‘s action in not only granting Bialec‘s motion for a new trial when it contained no “new” evidence, but then finding him guilty of a lesser included offense. Bialec did not offer any new evidence, but simply asked the court to look at the trial testimony from a different perspective.
{¶ 15} The abrupt manner of the court‘s action leaves the singular impression that it reconsidered its verdict in order to give Bialec the benefit of the failed negotiations occurring after the judgment of conviction. Presumably, the court took it upon itself to sentence Bialec under the lesser offense and more closely approximate the sentence that Bialec and the state agreed to prior to plea negotiations collapsing. This is the only conclusion permitted by the record given the court‘s failure to cite to any law or otherwise justify the reversal of its prior judgment. Unilateral judicial plea bargaining has no place in our criminal justice system.
{¶ 16} Unfortunately, the state did not appeal this aspect of the case. Instead, it limited its appeal solely to reviewing the jurisdictional basis for finding unavoidable prevention under