[Cite as State v. Evans, 2010-Ohio-5838.]
                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     PICKAWAY COUNTY


STATE OF OHIO,                                        :

        Plaintiff-Appellee,                           :   Case No. 09CA20

        vs.                                           :

DION M. EVANS,                                        :   DECISION AND JUDGMENT ENTRY


        Defendant-Appellant.                          :

_________________________________________________________________

                                             APPEARANCES:

APPELLANT PRO SE:                           Dion M. Evans, #537-957, Ross Correctional
                                            Institution, P.O. Box 7010, Chillicothe, Ohio 45601,
                                            Pro Se

COUNSEL FOR APPELLEE:      Judy C. Wolford, Pickaway County Prosecuting
                           Attorney, and Jayme Hartley Fountain, Pickaway
                           County Assistant Prosecuting Attorney, 203 South
                           Scioto Street, P.O. Box 910, Circleville, Ohio 43113
_________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 11-29-10

ABELE, J.

        {¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment

that overruled a motion for a new trial. A jury found Dion M. Evans, defendant below

and appellant herein, guilty of (1) two counts of burglary in violation of R.C.

2911.12(A)(2); (2) two counts of theft in violation of R.C. 2913.02; (3) failure to comply

with the order of a police officer in violation of R.C. 2921.331(B); (4) safe cracking in

violation of R.C. 2911.13(A); and (5) receiving stolen property in violation of R.C.
PICKAWAY, 09CA20                                                                        2

2913.51. Subsequently, appellant sought a new trial. The trial court, however, denied

his request.

      {¶ 2} Appellant assigns the following errors for review:
                                                 1
               FIRST ASSIGNMENT OF ERROR:

               “THE TRIAL COURT ERRED WHEN IT DENIED
               PETITIONER A NEW TRIAL AFTER IT PROCEEDED IN
               THE ORIGINAL TRIAL WITHOUT SUBJECT MATTER
               JURISDICTION.”

               SECOND ASSIGNMENT OF ERROR:

               “THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT
               PETITIONER A NEW TRIAL ON THE BASIS OF
               INEFFECTIVE ASSISTANCE OF COUNSEL.”

      {¶ 3} On the afternoon of August 24, 2006, an alarm sounded at the home of

Richard and Sandy Petty near Asheville. Several deputies responded and, when one

approached the house, he observed appellant walk from the Petty home into the

attached three car garage. Afer the deputy ordered appellant to get “down on the

ground,” appellant jumped into his car, crashed through the partially opened garage

door and sped down the driveway nearly colliding with one of the sheriff’s cruisers.

      {¶ 4} Deputies gave chase, but appellant managed to put some distance

between them before he crashed his vehicle and left on foot. Kenneth Bebout, an

Ohio State Wildlife Officer, was nearby and joined the deputies in the search. After

Officer Bebout observed appellant hiding in a creek bed, the officer alerted the deputies

who then took appellant into custody.


      1
          Appellant’s brief does not contain a separate statement of the assignments of
error as required by App.R. 16(A)(3). Thus, we take these assignments of error from the
brief's table of contents.
PICKAWAY, 09CA20                                                                            3

       {¶ 5} A subsequent pat-down search revealed a credit card in the name of

Angela Klett. The previous day Klett had reported several stolen items. A search of

the crashed vehicle also yielded property that belonged to both the Pettys, as well as

Jason and Melissa Retherford.

       {¶ 6} Later that afternoon, the Retherfords returned home to find that their

house had been broken into. Among the stolen items were guns, frozen foods and

savings bonds that belonged to their daughter. The bonds had been kept in a fireproof

safe in the bedroom. That safe, however, was found in the garage “cracked open.”

       {¶ 7} The Pickaway County Grand Jury indicted appellant on two counts of

burglary, two counts of theft, the failure to comply with the order of a police officer, safe

cracking and receiving stolen property. Appellant pled not guilty and the matter

proceeded to a jury trial in November 2006. After hearing the evidence, the jury

returned guilty verdicts on all counts. The trial court sentenced appellant to serve eight

years in prison on each burglary charge, twelve months on each theft charge, eighteen

months for the failure to comply with the order of a police officer, twelve months for

safe-cracking and twelve months for receiving stolen property. The court ordered the

sentences on counts one, three, four and seven be served consecutively to each other,

and concurrently to counts two, five and six for an aggregate total of eighteen and a half

(18½) years in prison. We affirmed appellant's conviction and sentence. See State v.

Evans, Pickaway App. No. 06CA34, 2007-Ohio-6575.

       {¶ 8} Appellant commenced the instant proceeding on April 13, 2009 with his
PICKAWAY, 09CA20                                                                            4

motion for a new trial.2 The grounds for the motion are: (1) trial counsel was ineffective

for not filing a motion to dismiss the indictment; (2) trial court lacked subject matter

jurisdiction over the criminal case because the indictment failed to specify a mental

state for several of the charges; and (3) the court exceeded its authority at sentencing.

The trial court overruled the motion both because it was filed out of rule as well as on

the merits. This appeal followed.

       {¶ 9} We jointly consider appellant’s two assignment of error. Generally, a

motion for new trial must be filed within fourteen days after a jury verdict or judgment.

Crim.R. 33(B). A motion for a new trial based on newly discovered evidence must

generally be filed within one hundred twenty days after the jury verdict or court

judgment. Id. In the case sub judice, as the trial judge aptly noted, because appellant

did not allege that he was “unavoidably prevented” from filing his motion within the time

limits, appellant's motion is several years out of rule.

       {¶ 10} Crim.R. 33(B) motions are properly dismissed when not filed within the

prescribed time period. See State v. Brown, Hamilton App. No. C-10050,

2010-Ohio-4599, at ¶6. However, requests to file delayed motions are permissible in

instances when clear and convincing evidence shows that a party is “unavoidably

prevented” from filing the motion within rule. Crim.R. 33(B); State v. Pinkerman (1993),

88 Ohio App.3d 158, 160, 623 N.E.2d 643, holding that such a finding is a jurisdictional

prerequisite to filing out of rule. See, also, State v. Bialec, Cuyahoga App. No. 86564,

2006-Ohio-1585, at ¶10 (Corrigan, J. Concurring). Thus, the trial court properly


       2
         Appellant cited Crim.R. 33(E) as authority for his motion. That portion of the
rule, however, sets forth “invalid” grounds for granting the motion.
PICKAWAY, 09CA20                                                                            5

dismissed appellant’s motion for new trial.

       {¶ 11} As for appellant’s claim that the trial court lacked subject matter

jurisdiction (a claim based on his argument the indictment failed to specify the requisite

mens rea for two charges against him), we need only point out that a failure to specify

mens rea does not render a judgment void, but voidable. See State v. Tucker,

Montgomery App. No. 23408, 2010-Ohio-2642, at ¶6; State v. Cool, Summit App. No.

24518, 2009-Ohio-4333, at ¶9. In the case at bar, the trial court engaged in a detailed

and thoughtful discussion and refuted appellant’s argument. We need not, and do not,

believe it necessary to review that discussion. Most important, appellant did not raise

this issue on direct appeal and is now barred from raising it at this late date pursuant to

the doctrine of res judicata. Tucker, supra at ¶6; State v. Turner, Cuyahoga App. No.

91695, 2008-Ohio-6648, at ¶¶5-9.

       {¶ 12} Furthermore, appellant’s claim that he received constitutionally ineffective

assistance from trial counsel for not raising the above noted issues is also barred by the

doctrine of res judicata. Appellant could have, but did not, raise the issue in his first

appeal of right.

       {¶ 13} Accordingly, based upon the foregoing reasons, we hereby overrule

appellant's assignments of error and affirm the trial court's judgment.

                                                                JUDGMENT AFFIRMED.

                                   JUDGMENT ENTRY

       It is ordered that the judgment be affirmed and that appellee recover of appellant

the costs herein taxed.

       The Court finds there were reasonable grounds for this appeal.
PICKAWAY, 09CA20                                                                           6

      It is ordered that a special mandate issue out of this Court directing the Pickaway

County Common Pleas Court to carry this judgment into execution.

      A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

      McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion

                                                       For the Court




                                                      BY:
                                           Peter B. Abele, Judge




                                NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final judgment entry
and the time period for further appeal commences from the date of filing with the clerk.
