State v. YatesState v. Yates
{¶ 1} This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1. Defendant-appellant, Pierre Yates (“Yates“), pro se, appeals the trial court‘s denial of his motion for leave to file a motion for a new trial. Finding no merit to the appeal, wе affirm.
{¶ 2} In May 2005, Yates was convicted of murder with two firearm specifications. He was sentencеd 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 motion for a new trial, which the trial court denied in March 2011.
{¶ 4} Yates now appeals, arguing in his sole аssignment of error that the trial court abused its discretion by not granting him leave to file a delayed mоtion for a new trial based on newly discovered evidence.
{¶ 5} A ruling on a motion for leave to file a motion for a new trial is within the trial court‘s discretion and will not be disturbed 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 judgmеnt; 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 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 bеen 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 frоm discovering the evidence within the one hundred twenty day period.” (Emphasis added.)
{¶ 7} In Yates‘s motion for a new trial, he characterized the 2008 changes made to
{¶ 8} Yates also failed to explain 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-Ohio1973, ¶12-18. Coon filed a motion for leave to file a delayed motion for a new trial based on changes made to the Ohio Administrativе Code that he argued applied to his case. However, he waited six months after the chаnge in the rules to file his motion for leave. The court held that:
“Coon offered no explanаtion as to 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 recover of appellant costs herеin taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to cаrry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. 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