[Cite as State v. Robinson, 2018-Ohio-1166.]


                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                   No. 17AP-707
v.                                               :            (C.P.C. No. 12CR-1868)

William L. Robinson, Jr.,                        :       (ACCELERATED CALENDAR)

                 Defendant-Appellant.            :




                                           D E C I S I O N

                                     Rendered on March 29, 2018


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, for appellee.

                 On brief: William Leslie Robinson, Jr., pro se.

                   APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
        {¶ 1} Defendant-appellant, William L. Robinson, Jr., appeals, pro se, from a
judgment of the Franklin County Court of Common Pleas denying his motion for new trial
and modification of verdict/sentence. For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} The facts and procedural history of this case are outlined in our decision
regarding appellant's direct appeal of his case in State v. Robinson, 10th Dist. No. 13AP-
563, 2014-Ohio-520, and will only be repeated here as relevant to our discussion. In
Robinson, appellant asserted that: (1) the jury verdicts in the case were not supported by
the manifest weight of the evidence, and (2) the trial court erred in imposing consecutive
sentences without making the necessary findings mandated by R.C. 2929.14(C)(4). We
overruled both assignments of error and affirmed the trial court judgment.
No. 17AP-707                                                                                                2


        {¶ 3} Subsequently, appellant filed with this court an application for delayed
reopening of the appeal. We denied appellant's application noting that appellate counsel
had provided appellant with copies of the appellate briefs in a timely fashion and, therefore,
appellant had the opportunity to notify counsel or this court of any additional issues before
the case was submitted to a panel of the court for a decision. We also noted appellant was
convicted of aggravated burglary and sexual battery based on eye witness testimony
supported by DNA evidence, and nothing before us indicated that any of his lawyers
rendered ineffective assistance of counsel. State v. Robinson, 10th Dist. No. 13AP-563,
2015-Ohio-3486.
        {¶ 4} On August 22, 2016, appellant filed a petition for postconviction relief. The
trial court denied the petition on December 8, 2016, and we affirmed the trial court's denial
on May 15, 2017. State v. Robinson, 10th Dist. No. 16AP-887, 2017-Ohio-2773.
        {¶ 5} On August 18, 2017, appellant filed a motion for new trial and modification
of verdict and sentence alleging ineffective assistance of counsel. The trial court denied the
petition finding it to be not well-taken. Appellant timely appealed.
II. Assignment of Error
        {¶ 6} Although not expressly articulated, having reviewed his brief it appears
appellant asserts a single assignment of error: that the trial court erred in denying his
motion for new trial. In support, he makes several arguments including: (1) the verdicts of
guilty of sexual battery and aggravated burglary were not supported by sufficient evidence,
(2) the judge abused its discretion by not instructing jurors on lesser-included offenses,
(3) the judge abused its discretion by admitting certain evidence which was prejudicial to
appellant in violation of the Rules of Evidence, (4) the prosecutor engaged in misconduct,1
and (5) his trial counsel was ineffective in not timely bringing this motion for new trial.
III. Discussion
        {¶ 7} We begin by considering appellant's arguments regarding the timeliness of
his motion. Appellant asserts he filed the motion pursuant to Crim.R. 33. An appellate
court applies an abuse of discretion standard in reviewing a trial court's denial of a motion
for leave to file a delayed motion for new trial. State v. Anderson, 10th Dist. No. 12AP-133,


1 We note appellant's motion did not contain an affidavit regarding prosecutorial misconduct which is required

by Crim.R. 33(C).
No. 17AP-707                                                                                 3


2012-Ohio-4733, ¶ 9.       Although an abuse of discretion is typically defined as an
unreasonable, arbitrary, or unconscionable decision, no court has the authority, within its
discretion, to commit an error of law. State v. Moncrief, 10th Dist. No. 13AP-391, 2013-
Ohio-4571, ¶ 7.
       {¶ 8} Crim.R. 33(B) states:
               Application for a new trial shall be made by motion which,
               except for the cause of newly discovered evidence, shall be
               filed within fourteen days after the verdict was rendered, or
               the decision of the court where a trial by jury has been waived,
               unless it is made to appear by clear and convincing proof that
               the defendant was unavoidably prevented from filing his
               motion for a new trial, in which case the motion shall be filed
               within seven days from the order of the court finding that the
               defendant was unavoidably prevented from filing such motion
               within the time provided herein.

               Motions for new trial on account of newly discovered evidence
               shall be filed within one hundred twenty days after the day
               upon which the verdict was rendered, or the decision of the
               court where trial by jury has been waived. If it is made to
               appear by clear and convincing proof that the defendant was
               unavoidably prevented from the discovery of the evidence
               upon which he must rely, such motion shall be filed within
               seven days from an order of the court finding that he was
               unavoidably prevented from discovering the evidence within
               the one hundred twenty day period.

       {¶ 9} In State v. Jama, 10th Dist. No. 11AP-210, 2012-Ohio-2466, ¶ 21, we
observed some courts have held a trial court cannot consider the merits of a motion for new
trial until it makes a finding regarding timeliness. See id., reference to State v. Lanier, 2d
Dist. No. 2009 CA 84, 2010-Ohio-2921, ¶ 17 (a defendant may file a motion for new trial
along with the request for leave to file said motion, but the court cannot consider the merits
of the motion for a new trial until it makes a finding of unavoidable prevention). We also
noted in Jama the trial court never made a finding of unavoidable prevention or issued an
order to that effect because Jama failed to properly seek leave before filing his motion. Such
is the case here, as appellant never sought leave to file his motion before filing the same and
in ultimately denying appellant's motion, the trial court did not address the timeliness of
the motion. Rather, the court indicated that "after full and careful consideration, [the
No. 17AP-707                                                                                                     4


court] finds said motion not well taken and hereby denies the same." (Emphasis omitted.)
(Jgmt. Entry.)
        {¶ 10} Nevertheless, we find appellant's motion to be untimely as the verdict was
rendered on May 10, 2013, and the motion for new trial was filed well beyond the 14-day
deadline outlined in Crim.R. 33.
        {¶ 11} As noted above, Crim.R. 33 provides for the filing of an untimely motion for
new trial: (1) when it is made to appear by clear and convincing proof that the defendant
was unavoidably prevented from filing his motion for new trial, and (2) in the case of newly
discovered evidence, when certain criteria are met.
        {¶ 12} "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 that existence within the time prescribed for filing the motion in the exercise
of reasonable diligence." State v. Hoover-Moore, 10th Dist. No. 14AP-1049, 2015-Ohio-
4863, ¶ 13; State v. Walden, 19 Ohio App.3d 141, 145-46 (10th Dist.1984).
        {¶ 13} "Clear and convincing proof that the defendant was 'unavoidably prevented'
from filing 'requires more than a mere allegation that a defendant has been unavoidably
prevented from discovering the evidence he seeks to introduce as support for a new trial.' "
State v. Lee, 10th Dist. No. 05AP-229, 2005-Ohio-6374, ¶ 9, quoting State v. Mathis, 134
Ohio App.3d 77, 79 (1st Dist.1999). The requirement of clear and convincing evidence puts
the burden on a defendant to prove he was unavoidably prevented from discovering the
evidence in a timely manner. State v. Rodriguez-Baron, 7th Dist. No. 12-MA-44, 2012-
Ohio-5360, ¶ 11.
        {¶ 14} Appellant stated he brought the motion and the appeal "along with
arguments of fact that are supported by evidence that was presented at trial." (Emphasis
added.) (Appellant's Brief at 7.) Therefore, by his own admission, appellant did not bring
the motion on grounds of newly discovered evidence. Review of his motion supports that
his motion is supported by evidence presented at trial and not newly discovered evidence.2
        {¶ 15} In his motion for new trial, appellant stated he was unavoidably prevented
from filing a Crim.R. 33 motion because his trial counsel never informed him that she could

2 We reject appellant's argument at page eight of his brief before this court that the lack of jury instructions on
lesser-included offenses constitutes "new discovered evidence" because these instructions were not part of the
trial court record. (Appellant's Brief at 8.)
No. 17AP-707                                                                              5


or would file a motion for new trial or a modification of sentence. Appellant further argues
the lack of jury instructions on lesser-included offenses "being ignored by the court"
appellant's counsel "still does not take these arguments to the next level by motioning the
court for a new trial or sentence modification * * * which shows her incompetence and
deficiency in not doing so." (Mot. for New Trial at 28.) We do not accept this as evidence
of being unavoidably prevented from filing the motion as the lack of jury instructions on
lesser-included offenses was known to trial counsel and appellant at the time of trial. At
the time of trial and within the time prescribed for filing the motion, appellant was aware
of the grounds he asserts in support of his motion.
       {¶ 16} Finally, appellant argues that his motion cannot be barred for untimeliness
pursuant to Jama. In Jama, we noted the defendant did not file a timely motion and we
found the trial court erred in modifying the verdict without providing some reference to a
valid authority which permits such a review and modification. We are not persuaded Jama
supports a finding that appellant was unavoidably prevented from filing his motion in a
timely manner.
       {¶ 17} Accordingly, we find appellant's motion was not timely filed and, therefore,
the trial court did not abuse its discretion in denying the motion.
       {¶ 18} Having found appellant's motion to be untimely filed, it is not necessary for
this court to address appellant's remaining arguments which address the merits of his
motion.
IV. Conclusion
       {¶ 19} In conclusion, we overrule appellant's single assignment of error.        The
judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                       Judgment affirmed.
                    BROWN, P.J., and LUPER SCHUSTER, J., concur.
