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State v. Bryan

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 29, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
QUISI BRYAN DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-00-393660-ZA

          ATTORNEYS FOR APPELLANT Timothy Young Ohio Public Defender By: Kathryn Sandford Assistant State Public Defender

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Christopher D. Schroeder Assistant Prosecuting Attorney Justice Center - 8th Floor

          Before: S. Gallagher, J., E.T. Gallagher, P.J., and Stewart, J.

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, JUDGE

         {¶1} Appellant Quisi Bryan appeals the trial court's denial of his motion for leave to file a motion for a new mitigation trial. Upon review, we affirm the trial court's decision because the motion for leave was untimely.

         {¶2} After a jury trial, Bryan was found guilty of two counts of aggravated murder for the killing of a police officer, two counts of attempted murder of another individual, carrying a concealed weapon, having weapons while under disability, and tampering with evidence. The jury also found Bryan guilty of death penalty specifications and firearm specifications. Bryan was sentenced to death for the murder and to prison for the remaining offenses. His convictions and death sentence were affirmed in State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433.

         {¶3} On January 11, 2017, Bryan filed a motion for leave to file a motion for a new mitigation trial that the state opposed. The trial court denied the motion. The trial court found that the motion "incorrectly proceeds under Crim.R. 33" instead of R.C. 2953.23 and also that the court was "bound to follow the Supreme Court of Ohio in State v. Belton, [149 Ohio St3d, ] 2016-Ohio-1581');">2016-Ohio-1581, [74 N.E.3d 319], which found Ohio's death penalty statute constitutional under Hurst v. Florida, 577 U.S., 136 S.Ct. 616[, 193 L.Ed.2d 504] (2016)." Further, the court recognized that the Supreme Court of Ohio had "unanimously denied [Bryan's] motion for order or relief on March 15, 2017[, ]" which motion had raised the same issues.

          {¶4} Bryan filed this appeal from the trial court's decision. He raises two assignments of error for our review.

         {¶5} Under his first assignment of error, Bryan claims the trial court erred by denying his motion. He argues that the trial court incorrectly determined that his motion should have been filed under R.C. 2953.23 when his motion was brought pursuant to Crim.R. 33. We recognize that "Crim.R. 33 procedures for a new trial exist independently from the R.C. 2953.21 procedure for postconviction relief." State v. Cashin, 10th Dist. Franklin No. 17AP-338, 2017-Ohio-9289, ¶ 13. Although the trial court's determination was incorrect in this regard, we may affirm the decision of the court as long as it is legally correct on other grounds. State v. Gulley, 8th Dist. Cuyahoga No. 101527, 2015-Ohio-3582, ¶ 12, citing State v. Payton, 124 Ohio App.3d 552, 557, 706 N.E.2d 842 (12th Dist.1997); Reynolds v. Budzik, 134 Ohio App.3d 844, 846, 732 N.E.2d 485 (6th Dist.1999), fn. 3.

         {¶6} The record reflects that Bryan filed his motion for leave to file a motion for a new mitigation trial pursuant to Crim.R. 33. He asserted grounds for a new trial under Crim.R. 33(A)(1), (4), and (5), and claimed that his sentence was imposed in violation of the Sixth and the Fourteenth Amendments of the United States Constitution, citing Hurst, 577 U.S., 136 S.Ct. 616, 193 L.Ed.2d 504. Although the state argues that Bryan's attempt to raise a new constitutional claim does not fall under any of the grounds for a new trial and does not allow for a "new sentencing proceeding, " we need not reach these arguments herein.

         {¶7} A defendant who fails to timely file a motion for a new trial must seek leave from the trial court to file a delayed motion for a new trial. State v. Dues, 8th Dist. Cuyahoga No. 105388, 2017-Ohio-6983, ¶ 10, citing State v. Mathis, 134 Ohio App.3d 77, 79, 730 N.E.2d 410 (1st Dist.1999). To obtain leave, Crim.R. 33(B) requires that the defendant must show clear and convincing proof that he was unavoidably prevented from filing his motion for a new trial. "[A] party is unavoidably prevented from filing a motion for a new trial if the party had no knowledge of the existence of the ground supporting the motion * * * and could not have learned of the existence of that ground within the time prescribed for filing the motion * * * in the exercise of reasonable diligence." State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984). In addition, the defendant must show that he sought leave within a reasonable time after discovering the evidence relied upon to support the motion for new trial. State v. Nunez, 8th Dist. Cuyahoga No. 104917, 2017-Ohio-5581, ¶ 17, citing State v. Gray, 8th Dist. Cuyahoga No. 92646, 2010-Ohio-11, ¶ 18.

         {¶8} Bryan's motion was premised on the United States Supreme Court's decision in Hurst, in which the Court concluded that Florida's death penalty statutory scheme violates the Sixth Amendment to the United States Constitution. The Hurst case was decided January 12, 2016, over five years after Bryan was sentenced to death. Bryan's motion for leave was filed a year after Hurst was decided. Although Bryan argues that Hurst is a complex decision that takes time to digest and understand, we find a year exceeded a reasonable time for filing the motion.

         {¶9} In State v. Mundt, 7th Dist. Noble No. 17 NO 0446, 2017-Ohio-7771, the Seventh District found untimely a motion for leave to file a motion for a new mitigation trial that was filed a year after Hurst, 577 U.S., 136 S.Ct. 616, 193 L.Ed.2d 504. The court determined that Mundt had not shown he was unavoidably prevented from filing a motion when he "was capable of raising the same argument prior to Hurst using other cases as support." Mundt at ¶ 9. The Seventh District cited the Supreme Court of Ohio's decision in State v. Roberts,150 Ohio St.3d 47, 2017-Ohio-2998, 78 N.E.3d 851, ¶ 84, which found a defendant raising a Hurst claim "could have made essentially the same Sixth Amendment argument by relying on Apprendi v. New Jersey,530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona,536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)." The Seventh District also cited the Supreme Court of Ohio's decision ...


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