State v. Parsons , 2024 Ohio 3367 ( 2024 )

[Cite as State v. Parsons, 2024-Ohio-3367.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
STATE OF OHIO,
CASE NO. 7-23-20
PLAINTIFF-APPELLEE,
v.
CULLEN PARSONS, OPINION
DEFENDANT-APPELLANT.
Appeal from Henry County Common Pleas Court
Trial Court No. 15CR0082
Judgment Reversed and Cause Remanded
Date of Decision: September 3, 2024
APPEARANCES:
Michael G. Aird and Michael H. Stahl for Appellant
Gwen Howe-Gebers for Appellee
Case No. 7-23-20
MILLER, J.
{¶1} Defendant-Appellant, Cullen Parsons (“Parsons”), appeals the
October 23, 2023 judgment issued by the Henry County Court of Common Pleas
denying his motion for leave to file an untimely motion for a new trial. Among his
arguments on appeal, Parsons contends that the trial court applied an incorrect legal
standard in deciding the motion. For the reasons that follow, we agree with that
contention, reverse the trial court’s judgment, and remand for further proceedings
consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
{¶2} On October 1, 2015, Parsons was indicted on counts for attempted
murder, felonious assault, and improper handling of a firearm in a motor vehicle
(along with various specifications for each count). Parsons waived his right to a
jury trial, and a two-day bench trial took place on March 7 and 8, 2016. The trial
court found Parsons guilty of the three charged offenses, along with a firearm
specification under R.C. 2941.146 for each of the first two offenses. The trial court
then sentenced Parsons to a total of 12 years in prison.
{¶3} On March 20, 2023, attorneys for Parsons filed a “Motion for Leave
to File Delayed Motion for A New Trial Based Upon Newly Discovered Evidence
Pursuant to Ohio Criminal Rule 33.” In the motion, Parsons asked the trial court
“for an order permitting him to file a Delayed Motion for a New Trial pursuant to
-2-
Case No. 7-23-20
Ohio Rule of Criminal Procedure 33(B).” He indicated the motion was “based upon
newly discovered evidence, previously unavailable to [him] and procured through a
public records request to the Defiance County Prosecutor’s office.” Parsons relied
on four pieces of (alleged) newly discovered evidence and argued they demonstrated
that a witness for the State—who had testified he heard Parsons admit to the
shooting at issue—testified falsely at the trial.
{¶4} On July 20, 2023, the trial court held a hearing on the motion for leave.
The State opposed the motion, arguing Parsons had not established, by clear and
convincing proof, that he was unavoidably prevented from discovering the
evidence.1 (See Aug. 28, 2023 Motion in Opposition for Leave to File for New Trial
at 9). On October 23, 2023, the trial court issued a judgment denying the motion
for leave. In its judgment entry, the trial court stated, “[i]t is not enough to say that
the Defendant was unavoidably prevented from discovering any evidence
whatsoever” but, rather, “[t]hat evidence must be material in order to be granted
leave to file a motion for a new trial.” (Emphasis in original) (Oct. 23, 2023
Judgment Entry at 7). The trial court decided that, “[b]ecause the Defendant’s
Motion fails under the due process analysis, as he has failed to demonstrate
materiality, the Court need not determine whether he was unavoidably prevented
from filing his motion in a timely fashion or whether he demonstrated that the State
1
Similarly, the State argues in this appeal that Parsons “was not unavoidably prevented from discovering
‘new evidence’ as reasonable diligence by [him] could have discovered the information.” (Appellee’s Brief
at 9).
-3-
Case No. 7-23-20
suppressed the” evidence. (Emphasis added) (Id. at 9). The trial court denied the
motion for leave, and Parsons then initiated this appeal.
II. ASSIGNMENT OF ERROR
Parsons raises a single assignment of error for our review:
Assignment of Error
The trial court abused its discretion by applying the incorrect standard
to deny appellant’s Motion for Leave to File a New Trial, by finding the
State has no obligation to provide cell-assignment records even when
they are materially exculpatory, and by making findings regarding the
materiality of the new evidence that are [i]nconsistent with the record.
III. DISCUSSION
{¶5} Parsons argues that the trial court applied an incorrect standard in
deciding the motion for leave. As explained below, we agree with this argument
and find that the case must be remanded for the trial court to newly decide the
motion using the proper standard and procedure, as set forth in Criminal Rule 33.
A. Standard of Review
{¶6} Typically, “[a] trial court’s ruling on a motion for leave to move for a
new trial is reviewed for an abuse of discretion.” State v. McNeal, 2022-Ohio-2703,
¶ 13. However, the issue presented here involves whether the court applied the
proper legal standard and procedure, as set forth in Crim.R. 33, in deciding the
motion for leave. Thus, the issue presented involves a question of law, and “we
review questions of law de novo.” Id. (explaining that courts lack discretion to
make errors of law, particularly when the trial court’s decision goes against the plain
-4-
Case No. 7-23-20
language of a statute or rule); see also Ohio Edison Co. v. Pub. Util. Comm. of Ohio,
78 Ohio St.3d 466, 469 (1997) (“[d]etermining whether the commission applied the
proper legal standard is a question of law” to be reviewed de novo).
B. Applicable Law
{¶7} Criminal Rule 33 addresses motions for a new trial. Its subsection (A)
provides, in part: “A new trial may be granted on motion of the defendant for any
of the following causes affecting materially the defendant’s substantial rights: . . .
(6) When new evidence material to the defense is discovered which the defendant
could not with reasonable diligence have discovered and produced at the trial.”
Crim.R. 33(A)(6). Crim.R. 33(B) states in pertinent part,
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. 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 from discovering the evidence within the one
hundred twenty day period.
{¶8} Therefore, “[g]enerally, a motion for a new trial based on newly
discovered evidence must be filed within 120 days after the jury verdict was
rendered or the trial court’s decision was issued if the defendant waived the right to
a jury trial.” State v. Hatton, 2022-Ohio-3991, ¶ 27, citing Crim.R. 33(B). “An
untimely motion for a new trial based on newly discovered evidence may be filed
only if the defendant first establishes by clear and convincing evidence that he was
-5-
Case No. 7-23-20
unavoidably prevented from discovering the evidence within the 120-day period.”
Id. at ¶ 28. “If the trial court determines that the defendant has met that burden and
grants a motion for leave to file a motion for a new trial, then the defendant must
file that motion within seven days.” Id.
{¶9} Thus, the sole question before the trial court when considering
whether to grant a defendant leave to file a motion for a new trial is whether the
defendant established by clear and convincing proof that he was unavoidably
prevented from discovering the evidence upon which he seeks to base the motion.
Id. at ¶ 30. Then, at the motion for new trial stage, the defendant must show—
among other things—that the newly discovered evidence discloses a strong
probability that it will change the result if a new trial is granted. Id. at ¶ 28, 32-33,
citing State v. Petro, 148 Ohio St. 505 (1947), syllabus.
{¶10} Significantly, the Supreme Court of Ohio has held that, “[w]hen a
defendant seeks leave to file a motion for a new trial under Crim.R. 33(B), the trial
court may not consider the merits of the proposed motion for a new trial until after
it grants the motion for leave.” Id. at ¶ 30, citing State v. Bethel, 2022-Ohio-783, ¶
41.
C. Analysis
{¶11} Parsons seeks a new trial on account of newly discovered evidence,
and it has been seven years since the trial court found him guilty. Therefore, Parsons
-6-
Case No. 7-23-20
filed a motion for leave, triggering Crim.R. 33(B)’s two-step process. Hatton, 2022-
Ohio-3991, at ¶ 29.
{¶12} However, the trial court did not follow Crim.R. 33’s procedure and
legal standard. It sidestepped the preliminary question of whether Parsons had
demonstrated that he was unavoidably prevented from discovering the evidence on
which he seeks to rely. Id. at ¶ 32. Instead, the court improperly jumped to the
merits of Parsons’ claim for a new trial. Id. The trial court decided that—based on
what had been presented at the motion for leave stage—the newly discovered
evidence was not material and Parsons was not entitled to a new trial under Crim.R.
33(A)(6), so it did not need to first decide whether he was unavoidably prevented
from filing his motion in a timely fashion. Consequently, the court avoided the issue
whether to grant him leave to file a motion for a new trial.2 But, as the Supreme
Court of Ohio has explained, “[u]nless and until a trial court grants a defendant leave
to file a motion for a new trial, the merits of the new-trial claim are not before the
court.” Id. at ¶ 33, citing Bethel, 2022-Ohio-783, at ¶ 41; see also Crim.R. 33.
{¶13} The State does not argue otherwise. Instead, the State sets forth the
correct standard and asks us to affirm the trial court, essentially seeking a finding
by this court that Parsons has not shown he was “unavoidably prevented from the
2
During oral argument before this court, Parsons’ counsel asserted that he “would have done more in the
[trial court] hearing to argue the materiality” of the evidence if the standard at that point had involved
materiality. Additionally, this is not a case, for example, where a defendant who was required to obtain leave
of court before moving for a new trial, instead immediately moved for a new trial without first seeking leave.
-7-
Case No. 7-23-20
discovery of the evidence.” Crim.R. 33(B). Given the record in this case, we decline
to decide that preliminary, fact-based question. Compare Hatton, 2022-Ohio-3991,
at ¶ 34, 42 (remanding matter to the trial court with instructions that it grant
defendant’s motion for leave to file a motion for a new trial where defendant
supported his motion for leave “with uncontradicted evidence that, on its face,
demonstrates that he was unavoidably prevented from discovering . . . the primary
evidence upon which he seeks to base his motion for a new trial”).
IV. CONCLUSION
{¶14} The trial court did not apply the proper legal standard and procedure
in deciding the motion for leave, as set forth in Criminal Rule 33. Having found
error prejudicial to Appellant in the particulars assigned and argued, we reverse—
in its entirety—the October 23, 2023 judgment of the Henry County Court of
Common Pleas. We remand the case for the trial court to consider anew, and render
a judgment on, Parsons’ motion for leave under the proper standard and for further
proceedings consistent with this opinion. See App.R. 12; Crim.R. 33; State v.
Francis, 2011-Ohio-4497, ¶ 23, 26 (4th Dist.) (reversing denial of a motion and
remanding the case to the trial court to consider the motion under the proper standard
and for further proceedings consistent with the opinion, where the trial court had
applied the wrong legal standard in denying the motion); State v. Hicks, 2023-Ohio-
4126, ¶ 49, 52 (8th Dist.) (reversing the trial court’s judgment and remanding for
further proceedings consistent with the opinion where the trial court erred as a
-8-
Case No. 7-23-20
matter of law by applying the incorrect legal standard); see also In re Adoption of
P.L.H., 2017-Ohio-5824, ¶ 33 (“[o]rdinarily, upon a determination that the court[]
below applied the wrong legal standard in deciding motion,” the matter is remanded
with instruction to make its analysis “under the correct legal standard”).
Judgment Reversed and
Cause Remanded.
WALDICK and ZIMMERMAN, J.J., concur.
/jlm
-9-