State v. ONeilState v. ONeil
MARY JANE TRAPP, J.
{¶1} Appellant, Curtis L. ONeil (“Mr. ONeil”),1 appeals the judgment of the Portage County Court of Common Pleas, in which the court denied, without a hearing, his motion for leave to file a motion for a new trial.
{¶2} Mr. ONeil raises two assignments of error, contending thаt the trial court abused its discretion by (1) overruling his motion for leave and (2) denying his request for an evidentiary hearing.
{¶4} Thus, we affirm the judgment of the Portage County Court of Common Pleas.
Substantive and Procedural History
{¶5} In 2008, the Portage County Grand Jury indicted Mr. ONeil for rape, a first-degree felony, in violation of
{¶6} Mr. ONeil pleaded not guilty to the offenses, and the case was tried tо a jury. The jury was unable to reach a verdict, and the trial court declared a mistrial. Shortly thereafter, the case was again tried to a jury. The jury returned a verdict finding Mr. ONeil guilty of each offense and each firearm specification that was charged in the indictment.
{¶7} Mr. ONeil appealed his convictions and sentences. This court affirmed his convictions but remanded for resentenсing based on the trial court’s errors in imposing postrelease control. See State v. ONeil, 11th Dist. Portage No. 2008-P-0090, 2009-Ohio-7000, ¶ 67-69. The Supreme Court of Ohio permitted Mr. ONeil to file a delayed notice of appeal, see State v. O’Neil, 124 Ohio St.3d 1537, 2010-Ohio-1557, 924 N.E.2d 841, but subsequently declined jurisdiction. See State v. O’Neil, 126 Ohio St.3d 1544, 2010-Ohio-3855, 932 N.E.2d 339.
{¶8} On remand, the trial court again imposed an aggregatе prison term of 49 years. Mr. ONeil appealed his sentences, and this court affirmed. See State v. ONeil, 11th Dist. Portage No. 2010-P-0041, 2011-Ohio-2202, ¶ 68. Mr. ONeil appealed to the Supreme Court of Ohio, which declined jurisdiction. See State v. Oneil, 129 Ohio St.3d 1492, 2011-Ohio-5129, 954 N.E.2d 664.
{¶9} In 2015, Mr. ONeil filed a petition for a writ of habeas corpus in the United States District Court for the Nоrthern District of Ohio (case no. 1:15 CV 960). The court dismissed his petition as untimely.
{¶10} On March 2, 2021, defense counsel filed an affidavit of disqualification in the Supreme Court of Ohio seeking to disqualify the trial court judge (case no. 21-AP-028). Two days later, on March 4, 2021, Mr. ONeil filed a motion fоr leave to file a motion for a new trial pursuant to
{¶11} On March 8, 2021, the Chief Justice filed an entry in the trial court stating that an affidavit of disqualification had been filed. On March 10, 2021, the trial court filed a judgment entry stating, “The Defendant’s Motion for an Evidentiary Hearing is denied without hearing.” On April 6, 2021, the Chiеf Justice filed an entry denying defense counsel’s affidavit of disqualification.
{¶12} Over one year later, on April 11, 2022, Mr. ONeil filed a motion for a final appealable order. He alleged that the trial court’s March 10, 2021 judgment entry did not deny his motion for leave; it was filed while the affidavit of disqualification was pending; and he was not served with the entry. The state opposed Mr. ONeil’s motion.
{¶13} On June 10, 2022, the trial court filed a judgment entry denying, without a hearing, Mr. ONeil’s motion for leave to file a motion for a new trial, stating, “Upon review, this Court finds that the documents submitted by [Mr. ONeil], on their face, do not demonstrate that [he] was unavoidably prevented from discovering the evidence with the 120-day period prescribed in
{¶14} Mr. ONeil appealed and asserts the following two assignments of error:
{¶15} “[1.] The trial court abused its discretion in overruling appellant’s motion for leave.
{¶16} “[2.] The trial court abused its discretion in denying appellant’s request for an evidentiary hearing.”
{¶17} In his first assignment of error, Mr. ONeil contends that the trial court abused its discretion by denying his motion for leave to file a motion for a new trial.
{¶18} We review a trial court’s ruling on a motion for leave for an abuse of discretion. See State v. Alexander, 11th Dist. Trumbull No. 2011-T-0120, 2012-Ohio-4468, ¶ 9. An abuse of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.2004).
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{¶21} As this court has explained, “
{¶22} “A defendant is ‘unavoidably prevented’ from filing a motion for new trial if the defendant ‘had no knowledge of the existence of the ground supporting the motion and could not have learned of that existence within the time prescribed for filing the motion in the exercise of reasonable diligence.’” Alexander at ¶ 17, quoting State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984). “Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable dоubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶23} In this case, the jury issued its verdict in 2008. Therefore, Mr. ONeil correctly sought leave before filing a motion for a new triаl. In an affidavit attached to his motion for leave, Mr. ONeil averred, in relevant part, that he was represented by appointed counsel at trial; no expert was hired regarding the eyewitness testimony; he was not aware of “any new changes in the science surrounding eyewitness testimony” until “recently”; and he could not afford counsel or expert assistance in the years following his convictions and sentences.
{¶25} Although Mr. ONeil alleged the existence of “new science,” the record does not support that conclusion. Some of the studies Dr. Carlson cites in his affidavit had not been published at the time of Mr. ONeil’s trial. However, Dr. Carlson’s citations to “foundational research” demonstrate that scientific theories on eyewitness identification have existed for decades. Similarly, with respect to proper police linеup procedures, Dr. Carlson primarily relies on a U.S. Department of Justice (“DOJ”) report issued in 1999. See State v. Chambers, 4th Dist. Adams No. 20CA1125, 2021-Ohio-3388, ¶ 21; State v. Stein, 5th Dist. Richland No. 13CA51, 2014-Ohio-222, ¶ 27-33 (each rejecting the appellants’ claims that developments in preexisting scientific theories constituted newly discovered evidence when the genesis of those theories existed at the time of trial). “
{¶27} Although Mr. ONeil alleged thаt he was financially unable to acquire expert assistance, there is no indication that he petitioned the court for funds to hire an expert or that doing so was not an option. Thus, he did not establish that he was unavoidably prevented from obtаining expert assistance because of his financial status. See State v. Thornton, 12th Dist. Clermont No. CA2012-09-063, 2013-Ohio-2394, ¶ 26.
{¶28} Finally, Mr. ONeil appears to contend that the legislature’s post-trial enactment of
{¶30} Mr. ONeil’s first assignment of error is without merit.
Evidentiary Hearing
{¶31} In his second assignment of error, Mr. ONeil contends that the trial court abused its discretion by denying his request for an evidentiary hearing.
{¶32} “‘The decision whether to grant or hold an evidentiary hearing on a defendant’s request for leave to file a delayed motion for new trial falls within the sound discretion of the trial court and will not be disturbed оn appeal absent an abuse of that discretion.’” Alexander, supra, at ¶ 15, quoting State v. Peals, 6th Dist. Lucas No. L-10-1035, 2010-Ohio-5893, ¶ 23.
{¶33} A defendant is “only entitled to a hearing on a motion for leave to file a motion for a new trial if he submits documents which, on their face, support his claim that he was unavoidably prevented from timely discovering the evidence at issue.” State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, 869 N.E.2d 77, ¶ 19 (2d Dist.). Therefore, “no such hearing is required, and leave may be summarily denied, where neither the motion nor its supporting affidavits embody prima facie evidence of unavoidable delay.” Peals at ¶ 23.
{¶34} As explained above, the trial court did not abuse its discretion in denying Mr. ONeil’s motion for leave. Consequently, the trial court did not abuse its discretion by failing to hold an evidentiary hearing on that motion.
{¶36} For the foregoing rеasons, the judgment of the Portage County Court of Common Pleas is affirmed.
MATT LYNCH, J.,
EUGENE A. LUCCI, J.,
concur.