Case Information
*1
[Cite as
State v. Yuschak
,
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 18CA0106-M Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE TERRY YUSCHAK COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO Appellant CASE No. 14CR0208 DECISION AND JOURNAL ENTRY Dated: October 28, 2019
CARR, Judge. Defendant-Appellant Terry Yuschak appeals, pro se, from the judgments of the
Medina County Court of Common Pleas. This Court affirms the July 16, 2018 entry denying his motion for leave to file a motion for new trial and dismisses the attempted appeal from the August 22, 2018 entry denying his motion for reconsideration.
I. In 2014,
Yuschak arranged for his girlfriend’s cousin, Mason Braun, to obtain drugs from [] Yuschak’s daughter * * * in an attempt to arrange for a police bust of the drug deal so that [Yuschak’s daughter] could be arrested and treated for her drug addiction. After Mason contacted [Yuschak’s daughter] seeking drugs, [she] contacted a man with whom she had gone to school, [the victim], to help her obtain the drugs. [The victim] agreed to drive [Yuschak’s daughter] to Cleveland, and advanced her money, to purchase heroin. [The victim] then drove [Yuschak’s daughter] to a Dairy Queen parking lot where she had arranged to meet Mason to complete the drug transaction. Mason arrived with [] Yuschak at the Dairy Queen. After they arrived, [the victim] was shot. As a result of the shooting, [the victim] suffered severe injuries and complications.
State v. Yuschak
, 9th Dist. Medina No. 15C0055-M,
{¶3} Following the March 20, 2014 shooting, Yuschak was indicted on one count of attempted murder, one count of felonious assault, and one count of having weapons while under disability. Two firearm specifications accompanied the first two charges. The matter proceeded to a jury trial, at which the jury found him guilty of all charges. Yuschak filed a “Renewed Motion to Dismiss and Motion for a New Trial[.]” The motion for new trial asserted that Yuschak’s “constitutional liberty to make a peremptory challenge of a potential juror was restricted unfairly denying him the basis for a fair trial.” The trial court denied the motions. The trial court sentenced Yuschak to an aggregate term of ten years in prison. He appealed and this Court affirmed the trial court’s judgment. See id. at ¶ 1.
{¶4} In November 2016, Yuschak filed a petition for post-conviction relief, which the trial court denied following a hearing. Yuschak appealed, but the appeal was dismissed as being untimely. See State v. Yuschak , 9th Dist. Medina No. 17CA0016-M (Apr. 13, 2017). In March 2018, Yuschak filed a pro se motion for leave to file a motion for new trial. That same day, he also filed his motion for new trial. The State opposed the motion and Yuschak filed a reply brief. On July 16, 2018, the trial court denied the motion for leave to file a motion for new trial. Thereafter, on July 23, 2018, Yuschak filed a letter addressed to the trial court, which the trial court interpreted as a motion for reconsideration. The trial court issued an entry on August 22, 2018, denying that motion for reconsideration. Yuschak appealed, but his appeal was dismissed as untimely. See State v. Yuschak , 9th Dist. Medina No. 18CA0082-M (Oct. 25, 2018). Yuschak then filed a motion seeking leave to file a delayed appeal from the July
16, 2018 and August 22, 2018 entries. This Court granted the motion. Yuschak has raised two assignments of error for our review, which will be addressed together to facilitate our discussion.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO GRANT APPELLANT’S MOTION FOR LEAVE TO FILE A MOTION FOR NEW TRIAL WHEN THE RECORD DEMONSTRATED BY CLEAR AND CONVINCING PROOF THAT HE WAS UNAVOIDABLY PREVENTED FROM DISCOVERING THE EVIDENCE WITHIN 120 DAYS OF HIS CONVICTION.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO HOLD A HEARING ON APPELLANT’S MOTION FOR LEAVE TO FILE A MOTION FOR NEW TRIAL WHEN THE RECORD AND CIRCUMSTANCES SUPPORTED HIS CLAIM THAT HE WAS UNAVOIDABLY PREVENTED FROM DISCOVERING THE NEW EVIDENCE. In his first assignment of error, Yuschak argues that the trial court abused its
discretion in denying his motion for leave to file a motion for new trial. In his second assignment of error, he asserts that the trial court abused its discretion when it denied his motion without holding a hearing. Despite seeking leave to appeal both the July 16, 2018 and August 22, 2018
entries, Yuschak’s assignments of error only address the July 16, 2018 entry denying his motion
for leave to file a motion for new trial. To the extent the August 22, 2018 entry is before us,
Yuschak’s attempted appeal from that entry is dismissed.
See State v. Washington
, 9th Dist.
Summit No. 27627,
motion for a new trial will not be reversed on appeal absent an abuse of discretion. Likewise, the
decision on whether the motion warrants a hearing also lies within the trial court’s discretion.”
(Internal citations and quotations omitted.)
State v. Williams
, 9th Dist. Summit No. 28572, 2017-
Ohio-8475, ¶ 7. An abuse of discretion indicates that the trial court was unreasonable, arbitrary,
or unconscionable in its ruling.
Blakemore v. Blakemore
,
{¶11}
“Crim.R. 33(B) does not provide a specific time limit for the filing of a motion for
leave to file a delayed motion for new trial. However, Ohio courts have adopted a
reasonableness standard. [Thus, a] trial court may require a defendant to file his motion for leave
to file [a motion for new trial] within a reasonable time after he discovers the evidence.”
(Internal quotations and citations omitted.)
State v. Leyman
, 9th Dist. Medina No. 14CA0037-
M,
that Braun, not Yuschak, was responsible for the shooting of the victim. The evidentiary materials consist of three affidavits and a copy of a police incident report. The first affidavit is that of Alicia T. In that affidavit, Alicia T. asserts that Braun sent her a text message on March 20, 2014, stating that he shot someone. In addition, Alicia T. averred that Braun, prior to Yuschak’s trial, continued to boast about shooting someone and getting away with it. Alicia T. maintained that she was never contacted by police, the State, or defense counsel, yet, was willing to testify. Alicia T. alleged that she had lived in Ohio her whole life and that she has the same *6 phone number she had in 2014. She asserted in her affidavit that she “recently ran into a family member” of Yuschak’s who told her of Yuschak’s conviction and that was why she chose to come forward.
{¶14} The two other affidavits contain averments that the affiants attempted to try to locate or contact Alicia T. prior to, and after, Yuschak’s trial but were unable to locate or contact her. The affidavits do not indicate the methods the affiants used to try to locate or contact Alicia T., nor do any of the evidentiary materials indicate when Alicia T. was finally contacted by, or on behalf of, Yuschak.
{¶15}
The police incident report indicates that it was printed on May 29, 2014, and
reflects Braun’s text messages from “3/20[.]” The report lists the phone number that Braun
texted, which, based upon the averments of Alicia T., appears to be her number. One of the texts
from the number associated with Braun states “[I] jus[t] shot someone[.]”
The record before us reflects that, prior to trial, Yuschak’s counsel requested “[a]
complete copy of the Verizon text messages for [] Braun on March 20, 2014.” Further, a copy of
the police incident report was attached to Yuschak’s petition for post-conviction relief.
Thus, we cannot say that the trial court abused its discretion in denying Yuschak’s
motion without a hearing. Yuschak did not demonstrate that he was unavoidably prevented from
discovering Alicia T.’s proposed testimony. Alicia T. averred that her phone number had not
changed since the time of the shooting, and, it appears, her phone number was on a police
incident report containing text messages from Braun. The record is clear that Yuschak had this
report at the time he filed for post-conviction relief in November 2016. Moreover, Yuschak
essentially acknowledges in his motion that this report was available to the State and defense
counsel at the time of trial. Therefore, Yuschak had the means to contact Alicia T. long before
*7
he filed his motion for leave to file a motion for new trial in March 2018. While the additional
affiants averred that they unsuccessfully tried to locate or contact Alicia T., they did not specify
how they attempted to do so. Moreover, it is unclear from Yuschak’s motion when he was
finally able to contact Alicia T.; thus, it is impossible to determine whether his motion for leave
was filed within a reasonable time.
See Leyman
,
III. Yuschak’s assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas denying his motion for leave to file a motion for new trial without a hearing is affirmed. To the extent Yuschak has appealed from the trial court’s denial of his motion for reconsideration, his attempted appeal is dismissed.
Appeal dismissed in part, and judgment affirmed in part.
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 Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the *8 period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR FOR THE COURT CALLAHAN, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
TERRY YUSCHAK, pro se, Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.