[Cite as State v. West, 2014-Ohio-1626.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100226




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                      TIMOTHY WEST
                                                    DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-11-548609

        BEFORE: S. Gallagher, P.J., Kilbane, J., and Stewart, J.

        RELEASED AND JOURNALIZED: April 17, 2014
FOR APPELLANT

Timothy West, pro se
604-876
P.O. Box 8107
Richland Correctional Institution
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, P.J.:

       {¶1} Defendant Timothy West appeals from the trial court’s decision denying his

motion for leave to file, pursuant to Crim.R. 33(B), a delayed motion for a new trial. For

the following reasons, we affirm the decision of the trial court.

       {¶2} The facts of West’s case have been amply set forth in his direct appeal from

the jury trial that culminated in his conviction, in State v. West, 8th Dist. Cuyahoga Nos.

97391 and 97900, 2013-Ohio-96, and again in his application for reopening of the direct

appeal, in State v. West, 8th Dist. Cuyahoga Nos. 97391 and 97900, 2013-Ohio-4185.

After both unsuccessful attempts to overturn his conviction, on June 6, 2013, West filed a

motion with the trial court pursuant to Crim.R. 33(B) — a motion for leave to file a

delayed motion for a new trial based on newly discovered evidence. In that motion,

West claimed that he recently discovered the absence of an affidavit supporting the state’s

search warrant authorizing a thermal-imaging flyover of West’s property. The trial court

denied West’s motion.

       {¶3} West timely appealed that decision, raising a single assignment of error in

which he claims the trial court abused its discretion by denying his motion for leave to file

a delayed motion for a new trial because he was unreasonably precluded from discovering

the lack of an affidavit to support the search warrant. We find no merit to West’s claims.

       {¶4} We note that West has challenged the search warrant on several occasions.

In doing so, this court has already affirmed the trial court’s decision to deny any motion to

suppress, in part determining that the trial court reviewed the particular affidavit
underlying the search warrant that West now claims does not exist. West, 8th Dist.

Cuyahoga Nos. 97391 and 97900, 2013-Ohio-4185, ¶ 14.

       {¶5} Nevertheless, even if we assume that West is correct that the affidavit

supporting the thermal-imaging flyover search warrant does not, or did not, exist, West

was unable to demonstrate that he was unreasonably prevented from discovering that fact

within the 120 days allowed by Crim.R. 33. Crim.R. 33 provides, in relevant part, that a

“new trial may be granted on motion of the defendant * * * [w]hen new evidence material

to the defense is discovered which the defendant could not with reasonable diligence have

discovered and produced at the trial.” Further,

       [i]f 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.

Crim.R. 33(B).

       {¶6} Therefore, in order to file

       a motion for a new trial based on newly discovered evidence beyond the
       one hundred and twenty days prescribed in the above rule, a petitioner must
       first file a motion for leave, showing by “clear and convincing proof that he
       has been unavoidably prevented from filing a motion in a timely fashion.”

State v. Wheat, 8th Dist. Cuyahoga No. 93671, 2010-Ohio-4120, ¶ 22, quoting State v.

Gray, 8th Dist. Cuyahoga No. 92646, 2010-Ohio-11. We will not overturn a trial court’s

determination to deny leave to file a delayed motion for new trial if competent, credible

evidence supports that decision. Id. at ¶ 23.
       {¶7} West’s argument solely rests on a presumption that he was unavoidably

prevented from discovering the disputed fact that the affidavit supporting the search

warrant authorizing the thermal-imaging flyover never existed.          Even if we assume

West’s claim is true, West was not unavoidably prevented from discovering the lack of an

affidavit.   West could have sought that affidavit through discovery requests in

prosecuting his motion to suppress the evidence made before trial. West claims in that

motion to suppress that the evidence was seized through what he deemed were

insufficiently supported warrants. The discovery request for the affidavit would have

revealed the existence, or lack thereof, of the affidavit. West does not have any evidence

sufficient to sustain his burden of demonstrating that reasonable diligence would not have

uncovered the lack of an affidavit supporting the search warrant he already challenged.

West’s sole assignment of error is overruled.

       {¶8} The decision of the trial court denying West leave to file a delayed motion for

a new trial is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
MELODY J. STEWART, J., CONCUR
