[Cite as State v. Thomas, 2017-Ohio-4403.]



                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                               :    APPEAL NOS. C-150581
                                                              C-150555
          Plaintiff-Appellee,                :    TRIAL NO. B-8802582

        vs.                                  :            O P I N I O N.

LEWIS THOMAS III,                            :

          Defendant-Appellant.               :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in C-150581;
                           Appeal Dismissed in C-150555

Date of Judgment Entry on Appeal: June 21, 2017




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Lewis Thomas III, pro se.
                    OHIO FIRST DISTRICT COURT OF APPEALS



MILLER, Judge.

        {¶1}    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.

        {¶2}    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.

        {¶3}    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).

        {¶4}    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



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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.

        {¶5}   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.

        {¶6}   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,




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and that he had not known what the evidence would show until he received it from

the Ohio Public Defender in 2009.

       {¶7}   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 discretion.

       {¶8}   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-



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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.

       {¶9}    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 unreasonable.

       {¶10} 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



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                  OHIO FIRST DISTRICT COURT OF APPEALS



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 procure affidavits “unnecessary” to the motion for leave); Stansberry

at *3 (finding unreasonable a three-year filing delay after the evidence was

“available” to defendant).

       {¶11} Because the common pleas court did not abuse its discretion in

determining that Thomas’s delay in filing his Crim.R. 33(B) motion was unreasonable,

we hold that the court did not abuse its discretion in overruling the motion on that

basis. Accordingly, we overrule the first assignment of error and affirm the court’s

judgment.

                                                                   Judgment affirmed.

MOCK, P.J., and DETERS, J., concur.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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