Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County TRIAL NO. B-8802582 Court of
Common Pleas Judgment Appealed From Is: Affirmed in
C-150581;Appeal Dismissed in C-150555
T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for
Thomas III, pro se.
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.
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.
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).
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 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.
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.
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, and
that he had not known what the evidence would show until he
received it from the Ohio Public Defender in 2009.
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
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- 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.
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
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 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 ...