State of Ohio v. [D.M.]
No. 15AP-603
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Rendered on October 13, 2015
2015-Ohio-4257
BRUNNER, J.
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
v. : No. 15AP-603
(C.P.C. No. 09CR-5355)
[D.M.], : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on October 13, 2015
Rоn O‘Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.
D.M., pro se.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, D.M., appeals from a decision of the Franklin County Court of Common Pleas denying his motion for leave tо file a delayed motion for a new trial. Because we agree that D.M. was not unavoidably prevented from filing the motion before now, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On September 4, 2009, D.M. was indicted for two counts of rape, one count of sexual battery, and three counts of gross sexual imposition based on sexual conduct and intercourse with his stepdaughter who was 11 or 12 at the time. He pled not guilty on September 9, 2009. The common pleas court held a trial on the matter on March 1 and 2, 2010. At trial, the state dismissed one count of rape and one count of gross sexual
{¶ 3} After deliberations, on March 4, 2010, the jury found D.M. guilty of all counts (other than the two dismissed counts). The trial court held a sentencing hearing on March 11, 2010. At the heаring, the trial court merged the rape and sexual battery charges and sentenced D.M. to ten years to life on the rape charge. The trial court also sentenced D.M. to five years on еach of the two gross sexual imposition counts and ordered him to serve those sentences concurrently with each other but consecutively to the ten years to life that the court imposed for the rape conviction. In total, the trial court sentenced D.M. to serve 15 years to life in prison.
{¶ 4} On April 13, 2010, the state requested leave to appeal, and the next day, April 14, 2010, D.M. apрealed as of right. The state sought to appeal the trial court‘s decision to exclude statements D.M. allegedly made to his minister while seeking counseling with that clergy member. D.M.‘s appeal asserted first, that the trial court should not have sentenced on both gross sexual imposition and rape on the alleged ground that gross sexual imposition is a lesser included offense of rape; second, that the trial should not have imposed consecutive sentences without making required findings; and third, that D.M.‘s convictions were against the manifest weight of the evidence and supported by insufficient еvidence. In a decision issued June 30, 2011, we denied the state leave to appeal and overruled D.M.‘s three assignments of error. State v. [D.M.], 10th Dist. No. 10AP-337, 2011-Ohio-3301.
{¶ 5} On July 8, 2014, D.M. attempted to file by mail while incarcerated a motion fоr leave to file a delayed motion for new trial but, for reasons unknown, the motion was not filed. However, a motion for leave was filed on August 12, 2014 and supported by an affidavit from D.M. D.M. argued in his motion that he had been prevented from discovering the improperly prejudicial contents of “State‘s Exhibit A,” which had been introduced at trial, that he had only recently become aware of Exhibit A‘s contents, and that as a result he was prevented from filing a motion for new trial. The state responded in opposition on August 15, 2014 and attached as an exhibit a discovery pleading originally filed in the casе approximately two months before trial, noting that records comprising Exhibit A had been delivered by the state in discovery to D.M.‘s counsel. On
{¶ 6} On May 28, 2015, the trial court denied D.M.‘s motion for leave to file a delayed motion for new trial. On June 22, 2015, D.M. timely appealed.
II. ASSIGNMENTS OF ERROR
{¶ 7} D.M. asserts two assignments of error:
1. IN DENYING APPELLANT‘S MOTION FOR LEAVE TO FILE FOR A NEW TRIAL, THE TRIAL COURT ABUSED ITS DISCRETION.
2. THE TRIAL COURT‘S DECISION DENYING APPELLANT‘S MOTION IS UNREASONABLE, AND ALSO, CONTRARY TO CRIMINAL RULE 33.
Because these assignments of error are intertwined, we address them together.
III. DISCUSSION
{¶ 8} “We review a court‘s denial of a motion for leave to file a delayed motion for new trial under an abuse of disсretion standard.” State v. Bass, 10th Dist. No. 13AP-1052, 2014-Ohio-2915, ¶ 13, citing State v. Townsend, 10th Dist. No. 08AP-371, 2008-Ohio-6518.
{¶ 9}
(A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights:
(1) Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial;
* * *
(6) When new evidence material to the defense is discovered which the defendant could not with reasonable diligence have discovered and produced at the trial.
(B) Motion for new trial; form, time. 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 renderеd, 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 motiоn 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.
Motions for nеw 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 beеn waived. If it is made to appear by clear and convincing proof that the defendant 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.
{¶ 10} A motion for a new trial “shall be filed within fourteen days after the verdict was rendered” or, if the motion for new trial is made “on account of newly discovered evidence [it] shall be filed within one hundred twenty days after the day upon which the verdict wаs rendered.”
{¶ 11} D.M. argues that he, personally, did not know what was in Exhibit A. He argues that, as a result, until now, he did not have a basis for filing a motion or objecting to the introduction of Exhibit A. However, D.M. has not shown that the defense, being a represented “party,” was unaware of Exhibit A or could not have become aware of its contents by the exercise of reasonable diligence. Wilson at ¶ 12. Nor has hе shown that Exhibit A was “newly discovered evidence” within the meaning of the Rules of Criminal Procedure. Newly discovered evidence, for purposes of
{¶ 12} The record also does not suggest that D.M.‘s counsel, by failing to object or to file a timely motion based on Exhibit A, was ineffective such that we could conclude thаt D.M. has “newly discovered” his counsel‘s ineffectiveness, nor does D.M. actually raise this point in this appeal. Our review of Exhibit A indicates that it included forensic hearsay information, information regarding other, previous acts by D.M., and a mention of an alleged confession by him to clergy. However, it also included information about the victim‘s sexual history, inconsistencies between what the victim reported to the interviewer and what she testified to at trial, and other material potentially prejudicial to the prosecution. In short, some of the material in Exhibit A could have legitimately been subject to objection by both the defense and prosecution, depending on which party sought to introduce the material. Yet, both defense and prosecution could also have
IV. CONCLUSION
{¶ 13} We overrule D.M.‘s two assignments of error and affirm the decision of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and DORRIAN, JJ., concur.