State v. Thomas

[Cite as State v. Thomas, 2017-Ohio-4403.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-150581
C-150555
Plaintiff-Appellee, : TRIAL NO. B-8802582
vs. : O P I N I O N.
LEWIS THOMAS III, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in C-150581;
Appeal Dismissed in C-150555
Date of Judgment Entry on Appeal: June 21, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Lewis Thomas III, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
MILLER, Judge.
{¶1} Today, we hold that a motion for leave under Crim.R. 33(B) to file a
motion for a new trial must be filed within a reasonable time of the defendant’s
discovery of new evidence. Our holding aligns us with all nine of our sister appellate
districts to visit this issue.
{¶2} Defendant-appellant Lewis Thomas III appeals from the Hamilton
County Common Pleas Court’s judgment overruling his Crim.R. 33(B) motion for
leave to file a motion for a new trial. We dismiss the case numbered C-150555,
because that appeal purports to be taken from a September 14, 2015 entry, but the
record reflects no such entry. We affirm the court’s judgment in the case numbered
C-150581, because the court did not abuse its discretion in overruling Thomas’s
Crim.R. 33(B) motion upon its determination that his six-year delay in filing the motion
was unreasonable.
{¶3} Thomas was convicted in 1988 of aggravated murder, aggravated
robbery, and felonious assault. He unsuccessfully challenged his convictions in
appeals to this court and the Ohio Supreme Court and in postconviction proceedings
filed between 1990 and 2015. See State v. Thomas, 1st Dist. Hamilton No. C-
880637, 1990 WL 37787 (Apr. 4, 1990), appeal not accepted, 54 Ohio St. 3d 713, 526
N.E.2d 159 (1990); State v. Thomas, 1st Dist. Hamilton No. C-910145 (Feb. 14,
1992); State v. Thomas, 1st Dist. Hamilton No. C-050245, 2005-Ohio-6823 (Dec. 23,
2005); State v. Thomas, 1st Dist. Hamilton No. C-060355 (May 2, 2007).
{¶4} Thomas here appeals the overruling of his April 2015 motion seeking
leave under Crim.R. 33(B) to file a Crim.R. 33(A)(6) motion for a new trial on the
ground of newly discovered evidence. On appeal, he presents six assignments of
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OHIO FIRST DISTRICT COURT OF APPEALS
error. In his first assignment of error, he challenges the common pleas court’s
exercise of its discretion in overruling, and in declining to conduct an evidentiary
hearing on, his Crim.R. 33(B) motion. In assignments of error two through six, he
challenges his convictions. This court has jurisdiction to review only the judgment
from which this appeal is taken. See State v. Gipson, 1st Dist. Hamilton Nos. C-
960867 and C-960881, 1997 WL 598397 (Sept. 26, 1997). Accordingly, we have no
jurisdiction to address the challenges to Thomas’s convictions presented in
assignments of error two through six. And we decide only the challenge in his first
assignment of error, to the overruling of his Crim.R. 33(B) motion without a hearing.
{¶5} Crim.R. 33(A)(6) permits a court to grant a new trial on the ground that
“new evidence material to the defense [has been] discovered, which the defendant
could not with reasonable diligence have discovered and produced at trial.” Crim.R.
33(B) requires that a Crim.R. 33(A)(6) motion be filed either within 120 days of the
return of the verdict or within seven days after the court, upon “clear and convincing
proof that the defendant [had been] unavoidably prevented from discovering the
evidence” within the 120-day period, grants leave to file a new-trial motion out of
time.
{¶6} Thomas was convicted in 1988. In 2015, he sought leave under
Crim.R. 33(B) to file a Crim.R. 33(A)(6) motion. He claimed that he is actually
innocent of the offenses for which he was convicted. He supported that claim with
evidence in the form of law-enforcement and hospital reports that he insisted
demonstrated his innocence, along with police and prosecutorial misconduct. And
he asserted that that evidence should have been, but was not, disclosed in discovery,
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OHIO FIRST DISTRICT COURT OF APPEALS
and that he had not known what the evidence would show until he received it from
the Ohio Public Defender in 2009.
{¶7} In seeking leave to move for a new trial upon his actual-innocence
claim, Thomas bore the burden of proving by clear and convincing evidence that,
within 120 days of the return of the verdicts in his case, he did not know of the
existence of that proposed ground for a new trial, and that he could not, in the
exercise of reasonable diligence, have learned of its existence. See Crim.R. 33(B);
State v. Schiebel, 55 Ohio St. 3d 71, 74, 564 N.E.2d 54 (1990); State v. Hawkins, 1st
Dist. Hamilton No. C-110291, 2011-Ohio-5645, ¶ 14. Thomas demonstrated that he
had been unavoidably prevented from discovering the allegedly exculpatory evidence
until 2009, when he received that evidence from the public defender. But the
common pleas court overruled Thomas’s Crim.R. 33(B) motion upon its
determination that he failed to demonstrate some justification for his six-year delay
in seeking leave to move for a new trial based on that evidence. We cannot say that
the court, in denying leave on that basis, abused its discretion.
{¶8} Crim.R. 33(B) does not prescribe the time within which a motion for
leave must be filed after the movant has learned of the proposed ground for a new
trial. But the Second, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and
Twelfth Appellate Districts require the filing of a Crim.R. 33(B) motion within a
reasonable time after the evidence supporting that ground was discovered. See State
v. Seal, 4th Dist. Highland No. 16CA14, 2017-Ohio-116, ¶ 12-14; State v. Brown, 186
Ohio App. 3d 309, 927 N.E.2d 1133, ¶ 24 (7th Dist.2010); State v. Cleveland, 9th Dist.
Lorain No. 08CA009406, 2009-Ohio-397, ¶ 49; State v. Willis, 6th Dist. Lucas No.
L-06-1244, 2007-Ohio-3959, ¶ 20-23; State v. Berry, 10th Dist. Franklin No. 06AP-
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OHIO FIRST DISTRICT COURT OF APPEALS
803, 2007-Ohio-2244, ¶ 27-29; State v. Valentine, 11th Dist. Portage No. 2002-P-
0052, 2003-Ohio-2838, ¶ 9; State v. York, 2d Dist. Greene No. 2000 CA 70, 2001
WL 332019, *3-4 (Apr. 6, 2001); State v. Barnes, 12th Dist. Clermont No. CA99-06-
057, 1999 WL 1271665, *3 (Dec. 30, 1999); State v. Stansberry, 8th Dist. Cuyahoga
No. 71004, 1997 WL 626063, *3 (Oct. 9, 1997). Those courts found that a
reasonable-time requirement is permitted as not inconsistent with the criminal rules,
see Crim.R. 57(B), and advances the stated objectives of those rules in securing the
speedy and sure administration of justice and in eliminating unjustifiable delay, see
Crim.R. 1(B), by discouraging a defendant from waiting to move for leave while the
evidence against him dissipates or disappears. See Seal at ¶ 12; Barnes at *3;
Stansberry at *3. No appellate district has refused to impose a reasonable-time
requirement.
{¶9} Here, we join our sister appellate districts in holding that even if the
defendant has demonstrated that he could not have learned of the proposed ground
for a new trial within the prescribed period, a court has the discretion to deny leave
to move for a new trial, when the defendant has delayed moving for leave after
discovering the evidence supporting that ground, and that delay was neither
adequately explained nor reasonable under the circumstances. See Seal at ¶ 12; York
at *3-4; Stansberry at *3. We conclude that the common pleas court did not abuse
its discretion in determining that Thomas’s filing delay was unreasonable.
{¶10} Thomas waited to file his Crim.R. 33(B) motion for over six years after
receiving the evidence on which his actual-innocence claim depended. The motion
was supported by that evidence, the Ohio Public Defender’s December 2008 letter
agreeing to send the evidence, and Thomas’s own affidavit attesting to his receipt of
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OHIO FIRST DISTRICT COURT OF APPEALS
the evidence in 2009. He did not offer in his affidavit any explanation for his delay
in moving for a new trial based on that evidence. Nor does the record otherwise
demonstrate circumstances that might be said to justify that delay. See, e.g., Seal at ¶
13 (finding unreasonable a two-and-one-half year filing delay from the time when
defendant “knew of [his] arguments”); Barnes at *3 (finding unreasonable a five-year
filing delay to procure affidavits “unnecessary” to the motion for leave); Stansberry
at *3 (finding unreasonable a three-year filing delay after the evidence was
“available” to defendant).
{¶11} Because the common pleas court did not abuse its discretion in
determining that Thomas’s delay in filing his Crim.R. 33(B) motion was unreasonable,
we hold that the court did not abuse its discretion in overruling the motion on that
basis. Accordingly, we overrule the first assignment of error and affirm the court’s
judgment.
Judgment affirmed.
MOCK, P.J., and DETERS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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