State of Ohio v. Jeffrey Clyde
Court of Appeals No. E-18-016
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
February 1, 2019
[Cite as State v. Clyde, 2019-Ohio-302.]
Trial Court No. 2011-CR-334
Decided: February 1, 2019
Kеvin J. Baxter, Erie County Prosecuting Attorney, and Martha S. Schultes, Assistant Prosecuting Attorney, for appellee.
Jeffrey Clyde, pro se.
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PIETRYKOWSKI, J.
{¶ 1} Appellant, Jeffrey Clyde, appeals the judgment of the Erie County Court of Common Pleas, denying his delayed motion for a new trial pursuant to
{¶ 2} On August 26, 2013, following a bench trial, appellant was found guilty of four counts of sexual battery, one count of corrupting a minor with drugs, one count of disseminating matter harmful to juveniles, two counts of compelling рrostitution, and two counts of attempted pandering obscenity. On appeal, we vacated appellant‘s convictions for one of the counts of compelling prostitution, and both counts of attemрted pandering obscenity, and remanded the matter for resentencing. State v. Clyde, 6th Dist. Erie No. E-14-006, 2015-Ohio-1859. Notably, the remaining counts all involved the same victim, appellant‘s minor daughter, K.T.
{¶ 3} Thereafter, appellant filed a motion for postcоnviction relief on the basis that his trial counsel was ineffective. The trial court denied the motion, and we affirmed. State v. Clyde, 6th Dist. Erie No. E-15-022, 2016-Ohio-31.
{¶ 4} On July 7, 2016, a resentencing hearing was held, and appellant was ordered to serve a total prison term оf 18 years. We affirmed his sentence on appeal on October 13, 2017. State v. Clyde, 6th Dist. Erie Nos. E-16-045, E-16-048, 2017-Ohio-8205.
{¶ 5} The genesis of the present action began on February 1, 2018, when appellant filed a motion for leave to file a delayed motion for a new trial pursuant to
{¶ 6} Also attached to appellant‘s motion was a letter from Erie County Department of Job and Family Services dated November 9, 2011, notifying appellant that an allegation that K.T. was physically abused was unsubstantiated. Notably, this letter was made part of the record in the underlying criminal case when it was attached to appellant‘s motion for an in-camera inspection of records on December 16, 2011. The state replied to appellant‘s motion on December 22, 2011, by attaching an affidavit from the letter‘s author stating that it pertained to a different allegation not involving appellant.
{¶ 7} The state filеd a response to appellant‘s motion for leave to file a delayed motion for new trial, in which it argued, among other things, that the information in K.T.‘s affidavit was not newly discovered evidence, as she testified at trial to the interaction with the prosecutor, and the letter from Erie County Department of Job and Family Services was not newly discovered evidence since it was included in the record.
{¶ 8} On March 14, 2018, the trial court summarily deniеd, without a hearing, appellant‘s motion for leave to file a delayed motion for new trial.
{¶ 9} Appellant has timely appealed the trial court‘s March 14, 2018 judgment, and now asserts two assignments of error for our review:
- The trial judge abused his discretion when he denied Appellant‘s Leave to File [a] Delayed Motion for New Trial Pursuant to Criminal Rule 33(A)(6). The trial court erred when it refused to grant Appellant‘s leave.
- The trial judge erred by not holding a hearing on the Appellant‘s Leave to File [a] Delayed Motion for New Trial Pursuant to Criminal Rule 33(A)(6).
III. Analysis
{¶ 10} Because appellant‘s assignments of error pertain to the same subject matter, we will address them together.
{¶ 11}
{¶ 12} Regarding the time when motions for a new trial may be filed,
Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days after the day upon which the verdict was rendered, or the decision of the court where trial by jury has been waived. If it is made to appear by clear and convincing proof that the
defеndant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period.
{¶ 13} Here, because more than 120 days had elapsed since the decision of the court was rendered, appellant moved for leave to file a delayed motion for a new trial. “Under the rule, the moving defendant must prove by ‘clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence’ on which the motion for a new trial is based.” State v. Sandoval, 6th Dist. Sandusky Nos. S-13-032, S-13-034, 2014-Ohio-4972, ¶ 13, quoting
{¶ 14} We review the denial of leave to file a delayed motion for a new trial under an abuse of discretion standard. State v. Willis, 6th Dist. Lucas No. L-06-1244, 2007-
{¶ 15} Upon our review of the evidence attached to appellant‘s motion, we find that he has not demonstrated by clear and convincing proof that he was unavoidably prevented from discovering the evidence on which his motion is based.
{¶ 16} Regarding the 2011 letter from Erie County Department of Job and Family Services, we find that the letter was introduced by his own counsel in the underlying criminal case. Thus, any claim that appellant only now learned about the letter, or that he could not have learned about it despite reasonable diligence, is wholly without merit.
{¶ 17} Regarding K.T.‘s affidavit, we find that, contrary to appellant‘s assertion, K.T.‘s affidavit is not a direct recantation of her trial testimony, but rather is a description of the factual еncounter that she had with the prosecutor, and an explanation why she initially made the allegations against her father. Assuming that the statements in the affidavit are true, this information would have been known to appellant at the time of the trial because both K.T. and the prosecutor testified at trial regarding their interaction in which K.T. attempted to recant and the prosecutor threatened that making false accusations wаs a crime. Likewise, K.T.‘s subsequent explanation that she made up the allegations so that she could be with appellant‘s friend would have been known to appellant because she stated that appellаnt knew of and disapproved of their relationship.
{¶ 19} Therefore, we hold that the documents on their face do not support that appellant was unavoidably prevented from discovering the evidence at issue.
{¶ 20} Finally, we also recognize that appellant‘s delay in filing the motion itself was unreasonable. While ”
{¶ 22} Accordingly, we hold that appellant has failed to demonstrate by clear and сonvincing proof that he was unavoidably prevented from discovering the allegedly new evidence. Moreover, we hold that the documents submitted by appellant do not demonstrate on their face that he was unavoidably prevented from discovering the new evidence, and appellant‘s delay in filing his motion was unreasonable. Therefore, we hold that the trial court did not abuse its discretion in denying appellant‘s motion for leave to file a delayed motion for new trial without a hearing.
{¶ 23} Appellant‘s first and second assignments of error are not well-taken.
IV. Conclusion
{¶ 24} For the foregoing reasons, we find that substantial justice has been done the party complaining, and the judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
State v. Clyde
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Arlene Singer, J.
Thomas J. Osowik, J.
CONCUR.
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.