STATE OF OHIO v. PIERRE YATES
No. 96664
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 29, 2011
[Cite as State v. Yates, 2011-Ohio-4962.]
BEFORE: Cooney, J., Jones, P.J., and E. Gallagher, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-460767
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 29, 2011
Pierre A. Yates, pro se
Inmate No. 484-276
Trumbull Correctional Institution
P.O. Box 901
5701 Burnett Road
Leavittsburg, Ohio 44430
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Matthew E. Meyer
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{1} This case came to be heard upon the accelerated calendar pursuant to
{2} In May 2005, Yates was convicted of murder with two firearm specifications. He was sentenced to three consecutive terms for a total of 23 years to life
{3} In June 2009, Yates filed a motion for leave to file a delayed motiоn for a new trial, which the trial court denied in March 2011.
{4} Yates now appeals, arguing in his sole assignment of error that the trial court abused its discretion by not granting him leave to file a delayed motion for a new trial based on newly discovered evidence.
{5} A ruling on a motiоn for leave to file a motion for a new trial is within the trial court‘s discretion and will not be disturbеd on appeal absent a showing of abuse of discretion. State v. Pinkerman (1993), 88 Ohio App.3d 158, 623 N.E.2d 643; State v. Wright (1992), Greene App. No. 90CA135. An abuse of discretion is more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{6}
“Motions for new trial on account of newly discovered еvidence shall be filed within one hundred twenty days after the day upon which the verdict was rendеred, 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 defendant was unavoidably prevеnted 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.” (Emphasis added.)
{7} In Yates‘s motion for а new trial, he characterized the 2008 changes made to
{8} Yates also failed to exрlain in his motion why he waited seven months after the amendments were enacted to file his motion. This issue was addressed in State v. Coon, Jackson App. No. 04CA5, 2005-Ohio-1973, ¶12-18. Coon filed a motion for leave to file a delayed motion for a new trial based on changes made to the Ohio Administrative Code that he argued аpplied to his case. However, he waited six months after the change in the rules to filе his motion for leave. The court held that:
“Coon offered no explanation as tо why he then waited over six months after the effective date of the rule to file his motion. In the absence of clear and convincing proof that Coon was unavoidably prevented from filing his motion
during that time, we cannot say that the trial court abused its discretion in determining that Coon‘s motion was not timely filed.”
{9} As is the situation in the instant case, Yates offered no explanation for waiting over seven months before filing his motion. Having failed to establish by way of clear and convincing proof that he was unavoidably prevented from filing his motion during those seven months, this court cannot say that the trial court abused its discretion in denying his motion.
{10} Accordingly, the sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee rеcover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue оut of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminatеd. Case remanded to the trial court for execution of sentence.
COLLEEN CONWAY COONEY, JUDGE
LARRY A. JONES, P.J., and
EILEEN A. GALLAGHER, J., CONCUR