STATE OF OHIO, Appellee v. FREDDIE MCNEILL, Appellant
C.A. No. 15CA010774
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF LORAIN
August 22, 2016
2016-Ohio-5463
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 94CR45440
HENSAL, Judge.
{¶1} Freddie McNeill appeals a judgment of the Lorain County Court of Common Pleas that denied his application for leave to file a motion for new trial and his motion for new trial. For the following reasons, this Court affirms.
I.
{¶2} In 1995, a jury convicted Mr. McNeill of aggravated murder, and the trial court sentenced him to death. In 2011, Mr. McNeill applied for leave to move for a new trial, alleging that he was unavoidably prevented from discovering evidence, which he now alleges supports his motion for a new trial. He also filed a motion for new trial at the same time as he filed his application for leave, alleging that the State failed to disclose to him an audio tape in its possession. The audio tape is alleged to establish that one of the witnesses who identified him at trial was unable to identify him in a photo line-up. Mr. McNeill also alleged that the State failed to provide him with a police report, the contents of which mentioned that this same witness had
{¶3} The State opposed Mr. McNeill’s application for leave, arguing that his motion for new trial would be untimely under
{¶4} The trial court denied Mr. McNeill’s application, noting that the federal court granted him access to his police file in 2007. Mr. McNeill did not obtain an affidavit from his trial counsel in support of his motion, however, until June 23, 2011, and did not apply for leave to file a motion for new trial until September 23, 2011. It found that Mr. McNeill had failed to explain why it took him more than four years from the federal court order to file his motion. In particular, it found that he had failed to explain why only his former trial counsel could confirm
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT DENIED THE NEW TRIAL MOTION ON A BASIS NOT RAISED BY THE STATE OF OHIO AND TO WHICH APPELLANT WAS GIVEN NEITHER NOTICE FOR (SIC) THE OPPORTUNITY TO RESPOND.
{¶5} Mr. McNeill argues that the trial court incorrectly denied his application for leave to file a motion for new trial on a basis that the State did not raise in its opposition to his motion. Mr. McNeill asserts that the State opposed his application on the basis that it was not filed within 120 days of the jury’s verdict. He argues that the court denied his application, however, because he did not explain why it took so long for his trial counsel to review the newly discovered evidence. According to Mr. McNeill, the trial court raised that issue sua sponte without giving him an opportunity to address it, in violation of his due process rights.
{¶6}
{¶7} In its opposition brief, the State noted that Mr. McNeill submitted his motion for a new trial sixteen-and-a-half years after the jury’s verdict, well beyond the 120-day deadline for newly discovered evidence. It noted that
{¶8} It was Mr. McNeill’s burden to show by clear and convincing evidence that he was unavoidably prevented from discovering the new evidence he found and to establish in his application for leave that he filed the application within a reasonable time after discovering the evidence. See State v. Leyman, 9th Dist. Medina No. 14CA0037-M, 2016-Ohio-59, ¶ 13 (examining Mr. Leyman’s petition for leave to determine whether he had provided an
{¶9} Whether a motion for leave to file a motion for a new trial was timely is “the threshold determination that must be made” by the court that is reviewing the motion. State v. Trimble, 11th Dist. Trumbull No. 2013-P-0088, 2015-Ohio-942, ¶ 18. We, therefore, conclude that the trial court did not violate Mr. McNeill’s due process rights when it analyzed whether his application for leave was timely, even though the State did not challenge it on that basis. Mr. McNeill’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND A LACK OF DILIGENCE WHEN IT DENIED THE APPLICATION TO FILE A NEW TRIAL MOTION AND IN DOING SO FAILED TO ADDRESS AND CONSIDER THE STATE’S OVER A DECADE SUPPRESSION OF EXCULPATORY EVIDENCE, THE STATE’S MISREPRESENTATIONS TO THE COURTS REGARDING THE EXISTENCE OF EXCULPATORY EVIDENCE, THE REQUIREMENTS OF CRIM. R. 33, AND THE FEDERAL DISTRICT COURT’S DILIGENCE FINDINGS.
{¶10} Mr. McNeill argues that the trial court abused its discretion when it denied him leave to file a motion for new trial. He presents several arguments in support. He first argues that the court should have considered the State’s improper conduct over many years within its timeliness analysis. He next argues that he could not know for certain that the new audio tape was, in fact, newly discovered, until his trial counsel reviewed it and confirmed that it was not the tape which had been previously disclosed. For this reason, he asserts that he needed to have
{¶11} “A trial court’s decision to grant or deny a motion for leave to file a delayed motion for new trial will not be reversed on appeal absent an abuse of discretion.” Davis, 2013-Ohio-846, at ¶ 6. “An abuse of discretion implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Id. When applying this standard, we may not substitute our judgment for that of the trial court. Id.
{¶12} Mr. McNeill did not argue to the trial court that it should excuse his delay in filing an application for leave to file a motion for new trial because of the State’s delay in getting the information to him. We will not address issues that are raised for the first time on appeal if they could have been raised in the trial court. State v. Manso, 9th Dist. Summit No. 26727, 2014-Ohio-1388, ¶ 7. Mr. McNeill also did not inform the trial court that a federal court had already found that his application was filed within a reasonable time. In fact, aside from Mr. McNeill’s assertion in his brief, there is nothing in the record of this case that indicates that a federal court made such a determination.
III.
{¶14} The trial court did not violate Mr. McNeill’s due process rights or exercise improper discretion when it denied him leave to file a motion for new trial. The judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, P. J.
CANNON, J.
CONCUR.
(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)
APPEARANCES:
ROBERT A. DIXON, Attorney at Law, for Appellant.
LAURENCE E. KOMP, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting Attorney, for Appellee.