Lead Opinion
{¶ 4} The defendant filed a motion for a new trial based on Crim.R. 33(A)(4), which states as follows:
"A new trial may be granted on motion of the defendant for anyof the following causes affecting materially his substantialrights:
"* * *
"(4) That the verdict is not sustained by sufficient evidenceor is contrary to law. If the evidence shows the defendant is notguilty of the degree of crime for which he was convicted, butguilty of a lesser degree thereof, or of a lesser crime includedtherein, the court may modify the verdict or finding accordingly,without granting or ordering a new trial, and shall pass sentenceon such verdict or finding as modified."
{¶ 5} Additionally, Crim.R. 33(B) governs the time frame for filing motions for a new trial, and the pertinent part reads:
"Application for a new trial shall be made by motion which,except for the cause of newly discovered evidence, shall be filedwithin fourteen days after the verdict was rendered, or thedecision of the court where a trial by jury has been waived,unless it is made to appear by clear and convincing proof thatthe defendant was unavoidably prevented from filing his motionfor a new trial, in which case the motion shall be filed withinseven days from the order of the court finding that the defendantwas unavoidably prevented from filing such motion within the timeprovided 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),
{¶ 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 Crim.R. 33 only applies to motions for a new trial based on newly discovered evidence. Second, the reason for the defendant's untimely filing, i.e., plea negotiations, cannot serve as a ground for failure to comply with the statutory time frame.
{¶ 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 Crim.R. 33(B) is clear and unambiguous. Motions for a new trial based on insufficient evidence must be filed within 14 days, unless "the defendant was unavoidably prevented from filing his motion for a new trial." (Emphasis added.) See, also, State v. Daws,
Montgomery App. No. 18686,
{¶ 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 Crim.R. 33(A)(4), which deals with insufficient evidence to support a conviction. Therefore,McMahan is not applicable to the case at hand and the state cites no other law to support its argument. Accordingly, we cannot say that the court abused its discretion by granting the defendant's motion, and the state's assignment of error is without merit.
Judgment affirmed.
McMonagle, J., CONCURS IN JUDGMENT ONLY; Corrigan, J., CONCURS IN JUDGMENT ONLY WITH SEPARATECONCURRING 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 Crim.R. 33(B) because defendant Edward Bialec had been unavoidably prevented from filing that motion within the stated time period. The finding of unavoidable delay is a jurisdictional prerequisite for a grant of leave under the rule. The facts supporting the court's finding are not.
{¶ 11} Bialec conceded that he did not file the motion within 14 days as required by Crim.R. 33(B), but claimed that he had been unavoidably prevented from doing so by virtue of ongoing bargaining relating to his sentence. The state told the court it "has no objection for — to listening to this motion on its merit, your Honor, as it pertains to the timing of the motion."
{¶ 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,
{¶ 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 Crim.R. 33 motion under an abuse of discretion standard. State v. Schiebel (1990),
{¶ 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 Crim.R. 33(B). I reluctantly believe that decision fell within the court's broad discretion. I very strongly believe, however, that nothing contained in the lead opinion can or should be construed as condoning the court's groundless decision to reconsider its verdict in order to implement a plea bargain of its own choosing.