Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 2010 CR 506.
Plaintiff-Appellee Attorney Paul Gains Mahoning County
Prosecutor Attorney Ralph Rivera Assistant Prosecutor
Defendant-Appellant Zoltan Kozic, Pro se
JUDGES: Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Cheryl L.
Defendant-Appellant, Zoltan Kozic, appeals the trial
court's judgment denying his motion for leave to file a
motion for new trial. As Kozic's argument is meritless
the judgment of the trial court is affirmed.
This is Zoltan Kozic's third appeal stemming from his
convictions and sentence from a rash of burglaries in late
2009 through early 2010 that he committed in four counties
with multiple defendants, including his brother and
co-defendant Jamie Kozic. In State v. Kozic, 7th
Dist. No. 11 MA 160, 2014-Ohio-3788 (Z. Kozic I), we
affirmed most of his convictions and sentence, but reversed
two third degree drug trafficking convictions and ordered a
limited remand for the trial court to enter convictions on
lesser included fourth degree felonies and resentence
accordingly. In State v. Kozic, 7th Dist. No. 15 MA
215, 2016-Ohio-8556 (Z. Kozic II), because the trial
court exceeded the scope of our remand in Z. Kozic
I, we found the trial court erred and remanded the
matter a second time for a limited resentencing hearing for
the proper advisement and imposition of post-release control.
Z. Kozic II, ¶ 18.
Kozic filed a motion for leave to file a delayed motion for
new trial pursuant to Crim.R. 33, which he supported with his
own affidavit. On September 26, 2016, the trial court denied
In his sole assignment of error, Kozic asserts:
The procedure by which the trial court employed in dismissing
the Appellant's Motion for Leave to File Delayed Motion
for New Trial, pursuant to Crim.R. 33(A)(6), was a (sic)
abuse of discretion, thereby Due Process under the Fourteenth
Amendment to the United States Constitution, and Article I,
Section 16 of the Ohio Constitution.
To succeed on a new trial motion on the basis of newly
discovered evidence under Crim.R. 33(A)(6), the defendant
must show that the new evidence: "(1) raises a strong
probability that the result of the case will change if a new
trial is granted, (2) has been discovered since the trial,
(3) could not have been discovered prior to trial through the
exercise of due diligence, (4) is material to the issues, (5)
is not cumulative to other known evidence, and (6) does not
merely impeach or contradict the other known evidence."
State v. Dew, 7th Dist. No. 13 MA 174,
2016-Ohio-274, ¶ 9; State v. Petro, 148 Ohio
St. 505, 76 N.E. 370 (1947). However, the rule does not
require a hearing to resolve the motion. State v.
Billman, 7th Dist. No. 12 MO 3, 12 MO 5, 2013-Ohio-5774,
The decision to grant or deny a new trial based upon
"grounds of newly discovered evidence falls within the
sound discretion of the trial court." State v.
LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d
166, ¶ 85, citing State v. Hawkins, 66 Ohio
St.3d 339, 350, 612 N.E.2d 1227 (1993). Similarly, whether a
hearing is warranted is within the trial court's
discretion. State v. Mir, 7th Dist. No. 12 MA 210,
2013-Ohio-2880, ¶ 7. An abuse of discretion means the
trial court's decision is unreasonable based upon the
record; that the appellate court may have reached a different
result is not enough to warrant reversal. State v.
Dixon, 7th Dist. No. 10 MA 185, 2013-Ohio-2951, ¶
To be timely a motion for new trial based on newly discovered
evidence must be filed within 120 days after the verdict.
Crim.R. 33(B). If the motion is filed beyond that time frame,
the defendant must demonstrate by " 'clear and
convincing proof that he has been unavoidably prevented from
filing a motion in a timely fashion.' '[A] party is
unavoidably prevented from filing a motion for new trial if
the party had no knowledge of the existence of the ground
supporting the motion for new trial and could not have
learned of the existence of that ground within the time
prescribed for filing the motion for new trial in the
exercise of reasonable diligence.' " State v.
Brown, 186 Ohio App.3d 309, 2010-Ohio-405, 927 N.E.2d
1133, ¶ 23 (7th Dist.) (internal citations omitted).
Many courts have additionally required that motions for leave
to file a delayed new trial motion must be made within a
reasonable time after discovering the evidence. Id.
at ¶ 24.
Kozic claims that he should be entitled to a new trial
because of newly discovered evidence which establishes his
innocence. Namely, he attached his own affidavit stating that
his co-defendant, Jamie Kozic, admitted at his resentencing
hearing to committing the crimes of which Zoltan was
convicted. Counsel for Jamie Kozic stated on the record, that
his client Jamie said, "[Y]es I did it, and No ...