State v. Moore ( 2018 )

[Cite as State v. Moore, 2018-Ohio-318.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2017-CA-49
:
v. : Trial Court Case No. 2006-CR-1487
:
MICHAEL MOORE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 26th day of January, 2018.
...........
ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio
45501
Attorney for Plaintiff-Appellee
GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road N.E.,
Bloomingburg, Ohio 43106
Attorney for Defendant-Appellant
.............
WELBAUM, P.J.
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{¶ 1} Defendant-appellant, Michael Moore, appeals from the decision of the Clark
County Court of Common Pleas overruling his motion for new trial. For the reasons
outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On May 2, 2007, a jury found Moore guilty of two counts of murder, with
firearm specifications, and one count of having a weapon while under disability. We
affirmed Moore’s conviction on direct appeal, rejecting a challenge to the manifest weight
of the evidence presented at trial. State v. Moore, 2d Dist. Clark No. 2007-CA-40, 2008-
Ohio-2577.
{¶ 3} Almost seven years later, on March 25, 2014, Moore filed a petition for post-
conviction relief alleging ineffective assistance of counsel in the investigation and
handling of his case. The trial court denied Moore’s petition on April 18, 2014, and we
affirmed this judgment in February 2015. State v. Moore, 2d Dist. Clark No. 2014-CA-
66, 2015-Ohio-550.
{¶ 4} Following our decision affirming the denial of Moore’s petition for post-
conviction relief, on April 21, 2015, Moore filed a “motion for further proceedings.” As
part of this motion, Moore sought a ruling on a motion for new trial that he claimed to have
filed with the trial court on March 25, 2014. The trial court summarily overruled Moore's
“motion for further proceedings” and Moore appealed.
{¶ 5} On appeal, we reversed and remanded the matter to the trial court based on
the following reasoning:
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The docket of the case and the record before us do not include a motion for
new trial. However, at oral argument, Moore’s attorney produced a file-
stamped copy of a Motion for New Trial, dated March 25, 2014, and which
contained the correct case number. The State’s attorney indicated that he
had never seen the motion, and the trial court’s terse judgment in response
to the motion for further proceedings does not make clear that it had seen
the motion for new trial. Under these unusual circumstances, and with the
agreement of the parties, we will remand this matter to the trial court for it
to consider whether to add the March 25, 2014 motion for new trial to the
record, and then, if appropriate, to consider and rule on the motion.
State v. Moore, 2d Dist. Clark No. 2015-CA-70, 2016-Ohio-1473, ¶ 14.
{¶ 6} On remand, the trial court considered and denied Moore’s motion for new
trial without adding either the motion or its supporting affidavits to the record. In denying
the motion, the trial court provided the following reasoning:
Defendant has failed to meet his burden with the evidence presented in the
affidavits attached to his motion because his motion is untimely, failed to
show that there is a strong probability that the result of a new trial would be
different, the information could have been discovered previously and the
evidence merely attempts to impeach or contradict former evidence against
him. THEREFORE, Defendant has failed to present any new credible
evidence and his motion for a new trial is DENIED.
Entry (May 17, 2016), Clark County Court of Common Pleas Case No. 2006-CR-1487,
Docket No. 49.
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{¶ 7} Moore appealed from the denial of his motion for new trial, arguing that the
trial court erred in denying the motion without holding an evidentiary hearing. On appeal,
we found that the trial court must have concluded that the motion for new trial was properly
filed since the trial court ruled on the motion. However, because the record still did not
include a copy of the motion and its supporting affidavits, we held that we were unable to
review the motion to determine whether an evidentiary hearing was required. Therefore,
because we had nothing to review, we once again remanded the matter back to the trial
court with instructions to make the motion for new trial part of the record. As part of this
decision, we also vacated the trial court’s May 17, 2016 entry that purported to overrule
the motion, which did not exist in the record, and further advised that once the trial court
makes the motion part of the record, it could reissue its entry denying the motion if it
deemed such an action appropriate. State v. Moore, 2d Dist. Clark No. 2016-CA-35,
2017-Ohio-984, ¶ 6.
{¶ 8} On remand, the trial court issued an order on March 24, 2017, directing the
Clark County Clerk of Court to make Moore’s motion for new trial part of the record. The
motion was thereafter made part of the record and considered by the trial court.
{¶ 9} In his motion for new trial, Moore moved the trial court to vacate his conviction
and grant him a new trial pursuant to Crim.R. 33(A)(6) on grounds of newly discovered
evidence. Moore also requested the trial court to hold an evidentiary hearing on the
matter. The newly discovered evidence advanced by Moore was an alleged statement
made by Omari Kittrell after Moore’s trial. Kittrell is one of two eyewitnesses who testified
to seeing Moore shoot the victim in the face at close range outside a bar in Springfield,
Ohio. Moore’s motion and two of his supporting affidavits allege that Kittrell told Moore’s
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friend, Keenan Brown, that he had lied at trial when he testified about seeing Moore shoot
the victim. Moore’s motion includes affidavits from himself and Brown, as well as
Moore’s mother, stepfather, girlfriend, and an individual who was allegedly at the
Springfield bar at the time of the shooting.
{¶ 10} On April 28, 2017, the trial court issued an entry indicating that a copy of
Moore’s March 25, 2014 motion for new trial had been made part of the record and that
the motion was overruled. In overruling the motion, the trial court did not reiterate the
reasons it had set forth in its prior vacated entry of May 17, 2016. Instead, the trial court
merely stated the following: “Upon consideration of the defendant’s motion for a new trial,
the affidavits attached thereto, the State’s written response, and the law, said motion is
hereby OVERRULED.” Entry (April 28, 2017), Clark County Court of Common Pleas
Case No. 2006-CR-1487, Docket No. 55.
{¶ 11} Moore now appeals from the trial court’s decision overruling his motion for
new trial, raising a single assignment of error for review.
Assignment of Error
{¶ 12} Moore’s sole assignment of error is as follows:
THE TRIAL COURT ERRED IN FAILING TO ORDER A HEARING ON
APPELLANT’S MOTION FOR NEW TRIAL.
{¶ 13} Under his single assignment of error, Moore contends that the trial court
erred in overruling his Crim.R. 33 motion for new trial without first holding an evidentiary
hearing on the matter. We disagree.
{¶ 14} Whether a motion for new trial and the material submitted with the motion
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warrant an evidentiary hearing is within the sound discretion of the trial court. State v.
Clark, 2d Dist. Montgomery No. 17839, 2000 WL 1726851, *2 (Nov. 22, 2000), citing State
v. Prichard, 1st Dist. Hamilton No. C-990148, 1999 WL 1100139, *3 (Nov. 26, 1999) and
State v. Hill, 64 Ohio St. 3d 313, 333, 595 N.E.2d 884 (1992). Therefore, “[a] trial court’s
decision on a Crim.R. 33 motion for a new trial will not be reversed absent an abuse of
discretion.” State v. Gillispie, 2d Dist. Montgomery No. 24456, 2012-Ohio-1656, ¶ 31,
citing State v. Schiebel, 55 Ohio St. 3d 71, 564 N.E.2d 54 (1990), paragraph one of the
syllabus; State v. Matthews, 81 Ohio St. 3d 375, 378, 691 N.E.2d 1041 (1998). “ ‘Abuse
of discretion’ has been defined as an attitude that is unreasonable, arbitrary or
unconscionable.” (Citation omitted.) AAAA Enterprises, Inc. v. River Place Community
Urban Redevelopment Corp., 50 Ohio St. 3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 15} As previously noted, Moore’s motion for new trial is based on Crim.R.
33(A)(6), which provides that a trial court may grant a new trial “[w]hen new evidence
material to the defense is discovered which the defendant could not with reasonable
diligence have discovered and produced at the trial.” There is a specific time limit in
which a motion for new trial based on newly discovered evidence must be filed. Pursuant
to Crim.R. 33(B): “Motions for new 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 been waived.”
{¶ 16} In order to file a motion for new trial beyond the 120-day time limitation
specified in Crim.R. 33(B), a defendant must first seek leave of the trial court to file a
delayed motion. State v. Lanier, 2d Dist. Clark No. 2009-CA-84, 2010-Ohio-2921, ¶ 15,
citing State v. Warwick, 2d Dist. Champaign No. 01CA33, 2002 WL 1585663, *2 (July 19,
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2002); State v. Parker, 178 Ohio App. 3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 16 (2d
Dist.). “A trial court does not abuse its discretion in denying a motion for new trial filed
outside the Crim.R. 33(B) timeframe where the defendant does not first seek leave to file
the motion.” (Citations omitted.) State v. Golden, 10th Dist. Franklin No. 13AP-927,
2014-Ohio-2148, ¶ 10. Accord State v. Tucker, 8th Dist. Cuyahoga No. 95556, 2011-
Ohio-4092, ¶ 29.
{¶ 17} To obtain leave to file a delayed motion for new trial, the defendant “must
demonstrate by clear and convincing evidence that he or she was unavoidably prevented
from timely filing the motion for a new trial or discovering the new evidence within the time
period provided by Crim.R. 33(B).” (Citations omitted.) Warwick at *2. “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 [for new trial] 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.”
Crim.R. 33(B).
{¶ 18} “The reference to ‘clear and convincing proof’ means something more than
bare allegations or statements in a motion.” State v. Morris, 2d Dist. Montgomery No.
26949, 2017-Ohio-1196, ¶19. “A defendant is entitled to a hearing on a motion for leave
to seek a new trial if he submits documents that on their face support his claim of being
unavoidably prevented from meeting Crim.R. 33’s time requirement.” State v. Hiler, 2d
Dist. Montgomery No. 27364, 2017-Ohio-7636, ¶ 12, citing Lanier at ¶ 16. If a defendant
fails to submit documentation in support of his allegation of unavoidable delay, it is
appropriate for the trial court to deny the defendant leave to file an untimely motion for
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new trial. See Morris at ¶ 19.
{¶ 19} Although the trial court did not provide its reasoning for overruling Moore’s
motion for new trial, under the specific circumstances of this case, we find that such a
decision was not an abuse of discretion. It is clear from the record that Moore’s motion
for new trial was untimely, as it was filed almost seven years after a jury found him guilty,
yet Moore never requested leave to file the motion out of time. In other words, Moore
filed his motion for new trial without properly moving the trial court to make a determination
on whether he was unavoidably prevented from timely filing his motion. The trial court
could have reasonably overruled Moore’s motion based on this procedural irregularity.
See Golden, 10th Dist. Franklin No. 13AP-927, 2014-Ohio-2148 at ¶ 10; Tucker, 8th Dist.
Cuyahoga No. 95556, 2011-Ohio-4092 at ¶ 29.
{¶ 20} Moore also failed to demonstrate by clear and convincing proof that he was
unavoidably prevented from timely filing his motion for new trial. Moore’s only reference
to the delay in filing his motion is a vague allegation in the motion itself indicating that he
had only recently learned of the evidence on which his motion was based; i.e., that Kittrell
supposedly told Brown that he had testified falsely at Moore’s trial. None of the
supporting affidavits filed with Moore’s motion specifically aver when Kittrell made this
statement to Brown, nor do the supporting affidavits state when Moore allegedly learned
of Kittrell’s purported statement. Furthermore, none of the supporting affidavits even
generally aver that Moore was unavoidably prevented from timely filing his motion for new
trial as a result of the timing of Kittrell’s alleged statement.
{¶ 21} As previously noted, the burden to demonstrate clear and convincing proof
of unavoidable delay requires something more than bare allegations or statements in a
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motion. Morris, 2d Dist. Montgomery No. 26949, 2017-Ohio-1196 at ¶ 19. Without
more than the allegation in Moore’s motion claiming that he just recently learned of
Kittrell’s statement to Brown, we find no abuse of discretion in the trial court’s decision to
overrule Moore’s motion for new trial without a hearing.
{¶ 22} Moore’s sole assignment of error is overruled.
Conclusion
{¶ 23} Having overruled Moore’s sole assignment of error, the judgment of the trial
court is affirmed.
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DONOVAN, J. and FROELICH, J., concur.
Copies mailed to:
Andrew P. Pickering
George A. Katchmer
Hon. Douglas M. Rastatter