[Cite as State v. Lundy, 2020-Ohio-1585.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                     :

                 Plaintiff-Appellee,               :               No. 19AP-505
                                                                (C.P.C. No. 12CR-3892)
v.                                                 :
                                                              (REGULAR CALENDAR)
Markale Lundy,                                     :

                 Defendant-Appellant.              :



                                            D E C I S I O N

                                      Rendered on April 21, 2020


                 On brief: Ron O'Brien, Prosecuting Attorney, and
                 Kimberly M. Bond, for appellee. Argued: Kimberly M. Bond.

                 On brief: University of Cincinnati College of Law, Ohio
                 Innocence Project, Jennifer Paschen Bergeron, and Mallorie
                 Thomas, for appellant. Argued: Jennifer Paschen Bergeron.

                 APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

        {¶ 1} Defendant-appellant, Markale Lundy, appeals from a judgment of the
Franklin County Court of Common Pleas denying his motion for leave to file a motion for
new trial based upon newly discovered evidence. For the following reasons, we affirm.
        {¶ 2} On November 22, 2013, a jury returned verdicts finding appellant guilty of
one count of aggravated burglary, two counts of kidnapping, two counts of aggravated
robbery, one count of attempted murder, and one count of felonious assault arising from
an incident involving Andrea Newman and SeTecia Hayes on May 13, 2012. Following a
February 12, 2014 sentencing hearing, the trial court imposed an aggregate prison term of
No. 19AP-505                                                                                 2

22 years. The trial court journalized appellant's convictions and sentence in a March 14,
2014 amended judgment entry.
       {¶ 3}   Appellant appealed to this court, arguing that his convictions were against
the manifest weight of the evidence. This court rejected appellant's claim and affirmed the
trial court's judgment. State v. Lundy, 1oth Dist. No. 14AP-198, 2014-Ohio-3934. The
Supreme of Ohio declined discretionary review. State v. Lundy, 142 Ohio St.3d 1411, 2015-
Ohio-1099.
       {¶ 4} On November 12, 2014, appellant, through counsel for the Franklin County
Public Defender's Office, filed a Crim.R. 33(B) motion for leave to file a motion for new trial
based upon information obtained from the Columbus Police Department ("CPD")
regarding changes in interpretation and reporting guidelines for the DNA evidence
presented against appellant at trial. By decision and entry entered December 29, 2014, the
trial court denied the motion, finding that a change in CPD's reporting procedure for DNA
results did not qualify as newly discovered evidence pursuant to Crim.R. 33(B). Appellant
did not appeal the trial court's decision.
       {¶ 5} On October 16, 2017, appellant, through counsel from the Ohio Innocence
Project ("OIP"), filed a second motion for leave to file a motion for new trial, alleging that
he had discovered new evidence from a previously unknown witness indicating that an
individual other than himself had committed the offenses. More particularly, appellant
asserted that Derrick Watson, an inmate with whom he was incarcerated at the Ross
Correctional Institution, had informed him that he (Watson) had witnessed the May 13,
2012 incident and observed a person other than appellant commit the offenses. Appellant
attached to his motion an affidavit executed by Watson on June 3, 2015. In that affidavit,
Watson attested that in March 2015, he was apprised by a fellow inmate that appellant had
attempted suicide because he was incarcerated for crimes he did not commit. After the
inmate described the crimes, Watson realized that he had been present at the crime scene
and that someone other than appellant was the perpetrator. Watson further attested that
appellant moved to Watson's cell block on May 18, 2015; four days later, on May 22, 2015,
Watson met with appellant and asked him about his case "to make sure I was right about
what I was thinking." (Watson Aff. at 1, attached to Oct. 16, 2017 Mot.) Watson asserted
that he was "shocked to hear that Markale Lundy was locked up for this crime, being that I
No. 19AP-505                                                                                3

was there when Andrea Newman got attacked, and it was not Markale Lundy." Id. at 1.
Watson reiterated that the man he saw commit the crimes "was not Markale Lundy" and
that he was "100% sure that the man I saw was shorter and lighter than Markale Lundy."
Id. at 3. Watson also set forth a detailed explanation of the crimes as well as why he did not
timely report the incident to law enforcement. Appellant also attached numerous
unauthenticated copies of CPD documents to his motion for leave.
       {¶ 6} On July 2, 2019, the trial court denied appellant's motion for leave without
holding a hearing. The court found that the motion had not been filed within a reasonable
time after discovering the new evidence. Specifically, the court found that "the two years
delay after obtaining the evidence and the filing of the motion for leave is unreasonable and
that the delay was not adequately explained nor reasonable under the circumstances."
(July 2, 2019 Entry at 4.)
       {¶ 7} Appellant timely appeals, asserting the following assignments of error:
              I. The trial court abused its discretion when it failed to grant
              Appellant's Motion for Leave to File a Motion for New Trial
              when the record demonstrated by clear and convincing proof
              that Appellant was unavoidably prevented from discovering
              the evidence within 120 days of his conviction.

              II. The trial court abused its discretion when it denied leave to
              file a motion for new trial without first holding a hearing
              where the paper filings show that Appellant was unavoidably
              prevented from discovering the new evidence.

       {¶ 8} In his first assignment of error, appellant contends that the trial court abused
its discretion in denying his motion for leave to file a delayed motion for new trial because
the record demonstrated by clear and convincing proof that he was unavoidably prevented
from discovering the new evidence within the 120-day time period set forth in Crim.R. 33.
Appellant further maintains that the trial court abused its discretion in finding that his
motion for leave was not filed within a reasonable time after discovering the new evidence.
       {¶ 9} Crim.R. 33(A) provides the grounds upon which a defendant may receive a
new trial. As relevant here, Crim.R. 33(A)(6) provides that a defendant may be granted a
new trial "[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."
No. 19AP-505                                                                                4

       {¶ 10} A motion for new trial based upon newly discovered evidence must be filed
within 120 days after the day upon which the verdict was rendered. Crim.R. 33(B). A
defendant who fails to file a motion for new trial within the 120-day period must seek leave
from the trial court to file a delayed motion. State v. Berry, 10th Dist. No. 06AP-803, 2007-
Ohio-2244, ¶ 19. In this case, the jury verdicts were rendered on November 22, 2013;
appellant did not file his motion until October 16, 2017, well outside the 120-day deadline
imposed by Crim.R. 33(B). Accordingly, appellant correctly sought leave from the trial
court to file a delayed motion. Id.
       {¶ 11} To obtain such leave, a defendant must demonstrate by clear and convincing
proof that he or she was unavoidably prevented from discovering the evidence upon which
the motion is based within the 120-day timeframe. Crim.R. 33(B); Berry at ¶ 19. A
defendant is unavoidably prevented from discovering new evidence if he or she had no
knowledge of the existence of the new evidence and, in the exercise of reasonable diligence,
could not have learned of its existence within the time prescribed for filing a motion for new
trial. Id., citing State v. Lee, 10th Dist. No. 05AP-229, 2005-Ohio-6374, ¶ 7, and State v.
Walden, 19 Ohio App.3d 141, 145-46 (10th Dist.1984).
       {¶ 12} "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.
Hoover-Moore, 10th Dist. No. 14AP-1049, 2015-Ohio-4863, ¶ 14, citing State v. Anderson,
10th Dist. No. 12AP-133, 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." Hoover-Moore at ¶ 14, citing
State v. Moncrief, 10th Dist. No. 13AP-391, 2013-Ohio-4571, ¶ 7.
       {¶ 13} In support of his argument that he provided clear and convincing proof that
he was unavoidably prevented from discovering the new evidence upon which is motion is
based, appellant relies on Watson's attestation that he did not advise appellant that he had
witnessed another person commit the crimes for which appellant was convicted until he
and appellant met in prison in May 2015. Appellant acknowledges that the trial court did
not specifically address the "unavoidably prevented" issue. Appellant submits that the trial
court's omission in this regard amounts to a determination that appellant established that
No. 19AP-505                                                                                   5

he was unavoidably prevented from discovering the new evidence within the 120-day time
period. Thus, argues appellant, the trial court should have sustained his motion for leave.
       {¶ 14} Even if the trial court were to have concluded as appellant contends,
appellant was required to demonstrate that his motion for leave was filed within a
reasonable time after discovering the new evidence. State v. N.D.C., 10th Dist. No. 15AP-
63, 2015-Ohio-3643, ¶ 16 ("even if a defendant has established that they were unavoidably
prevented from filing their motion for a new trial within the time limits, if there was an
'undue delay in filing the motion after the evidence was discovered, the trial court must
determine if that delay was reasonable under the circumstances or that the defendant has
adequately explained the reason for the delay' "). (Citations omitted.) See also State v.
Wilson, 7th Dist. No. 11 MA 92, 2012-Ohio-1505, ¶ 57 ("even if we were to assume that these
affidavits do provide clear and convincing proof that Wilson was unavoidably prevented
from discovering evidence that Joseph Oliver was actually the shooter, Wilson still has
another problem to overcome – the delay from discovering the evidence and filing his
motion for leave").
       {¶ 15} Although Crim.R. 33(B) does not provide a specific timeframe in which a
defendant must seek leave to file a delayed motion for new trial, most Ohio courts, including
this court, have adopted a reasonableness standard; thus, the trial court may properly
require a defendant to file a motion for leave within a reasonable time after the discovery
of new evidence. Indeed, this court has stated that "a 'trial court may require a defendant
to file his motion for leave to file within a reasonable time after he discovers the evidence.' "
Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 37, quoting State v. Griffith, 11th Dist.
No. 2005-T-0038, 2006-Ohio-2935, ¶ 15. If there is undue delay between discovery of the
new evidence and filing the motion for leave, the trial court must determine if that delay
was reasonable under the circumstances or whether the defendant has adequately
explained the reason for the delay. Berry at ¶ 38, citing State v. Stansberry, 8th Dist. No.
71004 (Oct. 9, 1997).
       {¶ 16} In his motion for leave, appellant provided the following explanation for the
27-month filing delay. OIP is a non-profit legal clinic at the University of Cincinnati College
of Law operated by law students under the guidance of licensed attorneys. OIP procedures
require an inmate seeking representation to complete a screening process. Thereafter, law
No. 19AP-505                                                                                 6

student fellows conduct an independent and detailed factual and legal investigation into
the inmate's claim. If this investigation reveals new evidence that supports the inmate's
claim, OIP accepts the inmate as a client and drafts documents for filing in court. This
review and investigation process typically takes several years to complete due to both the
nature of post-conviction investigations and the fact that the legal clinic is staffed by law
students who rotate through the clinic on an annual basis.
       {¶ 17} As to the specifics of his case, appellant asserted that he wrote to OIP in
November 2014 proclaiming that he was innocent of the crimes for which he was convicted.
After obtaining Watson's affidavit on June 3, 2015, he forwarded it to OIP on June 24, 2015.
Due to a backlog of cases, his case was not assigned for investigation until June 2016.
Because the law student rotation occurs in the spring of each year, a new group of students
arrived just after his case came off the waitlist. The law students and supervising counsel
worked on the case from June 2016 to October 2017, culminating in the October 16, 2017
filing of the motion for leave to file a motion for new trial.
       {¶ 18} Appellant contends that "the trial court's order denying leave provided no
explanation for its decision other than a conclusory statement that two years was an
unreasonable delay." (Appellant's Brief at 29.) Contrary to appellant's assertion, the trial
court did not deny the motion based solely upon the passage of time. Rather, the court
determined that appellant failed to offer a sufficient explanation for the 27-month delay
between procuring Watson's affidavit in June 2015 and filing the motion for leave in
October 2017. Indeed, the court, citing Berry at ¶ 38, noted that "[a]llowing the defendant
to file a motion [for] leave [to file] a motion for a new trial at any time would frustrate the
overall objective of the criminal rules in providing the speedy and sure administration of
justice, simplicity in procedure, and the elimination of unjustifiable delay." (July 2, 2019
Entry at 3-4.)
       {¶ 19} As the states notes, appellant offered only general information regarding the
work flow at OIP; he did not provide the trial court with any information about the work
flow associated with his specific case. Appellant did not offer a specific explanation as to
why his case was not assigned for review until June 2016, one full year after OIP received
appellant's documentation, other than to attribute this delay to a backlog of cases. Nor did
appellant provide any information explaining what occurred after his case was assigned for
No. 19AP-505                                                                                    7

review in June 2016. Appellant did not provide information such as how many students
were assigned to his case or how many hours were expended in reviewing his case. Nor did
appellant describe what investigative steps or actions OIP took from June 2016 to
October 16, 2017, other than obtaining and reviewing the trial transcripts and documentary
evidence in the case. However, appellant did not explain when OIP requested and/or
received this information. Given this lack of detail, we cannot conclude that the trial court
abused its discretion in finding that appellant failed to sufficiently explain his delay in filing
his motion for leave.
       {¶ 20} In State v. Woodward, 10th Dist. No. 08AP-1015, 2009-Ohio-4213, the
defendant filed a motion for leave to file a motion for new trial accompanied by the affidavit
of a witness who recanted his trial testimony identifying the defendant as his co-
conspirator. This court observed that the defendant had learned "sometime in 2005" that
the affiant would recant his trial testimony but waited until February 2008 to file his motion
for leave. Id. at ¶ 16. The defendant asserted that the two-year delay was justified because
"it took some time to contact his attorney and that it took time for his attorney to investigate
the new testimony." Id. While we were sympathetic to "the logistical difficulties an inmate
faces in trying to communicate with a lawyer," we held that "the trial court did not abuse its
discretion in concluding this explanation does not justify appellant's delay of more than two
years before filing his motions." Id. at ¶ 17.
       {¶ 21} As we stated in Woodward, we appreciate the logistical difficulties facing an
inmate in obtaining legal representation. We also are mindful that OIP provides vital and
invaluable services to persons alleging that they have been wrongfully convicted of serious
crimes. We also acknowledge that investigating, identifying, and litigating such cases is
tedious, detailed, time-consuming work which is further constrained by the fact that the
work is provided by law students who rotate through the legal clinic. However, pursuant to
Woodward, we cannot find that the trial court abused its discretion in concluding that
appellant's explanation does not justify the 27-month delay in filing his motion for leave.
       {¶ 22} Finally, we note that many courts, including this court, have found delays far
shorter than 27 months to be unreasonable. See, e.g., State v. Armengau, 10th Dist. No.
16AP-355, 2017-Ohio-197 (182 days); State v. Hill, 8th Dist. No. 108250, 2020-Ohio-102
(16 months); State v. Bryan, 8th Dist. No. 105774, 2018-Ohio-1190 (1 year); State v.
No. 19AP-505                                                                                8

Montgomery, 6th Dist. No. L-15-1282, 2016-Ohio-7527 (9 months); State v. Tubbs, 2d Dist.
No. 2015-CA-14, 2016-Ohio-842 (6 months); State v. Jackson, 3d Dist. No. 14-04-11, 2004-
Ohio-5103 (2 months); State v. Clark, 2d Dist. No. 26596, 2016-Ohio-39 (1 year); State v.
Unsworth, 6th Dist. No. L-09-1205, 2010-Ohio-398 (14 months); State v. Griffith, 11th
Dist. No. 2005-T-0038, 2006-Ohio-2935 (14 months); State v. Clyde, 6th Dist. No. E-18-
016, 2019-Ohio-302 (1 year).
       {¶ 23} Based on the record before this court, we cannot find that the trial court
abused its discretion in denying appellant's motion for leave to file a motion for new trial
where appellant did not file his motion for leave for 27 months after obtaining Watson's
affidavit.
       {¶ 24} Appellant's first assignment of error is overruled.
       {¶ 25} In his second assignment of error, appellant contends the trial court abused
its discretion in failing to conduct "a hearing on the question of timeliness." (Appellant's
Brief at 34.) We disagree.
       {¶ 26} "A trial court's decision whether to conduct an evidentiary hearing on a
motion for leave to file a motion for new trial is * * * discretionary." Hoover-Moore at ¶ 14,
citing State v. Cleveland, 9th Dist. No. 08CA009406, 2009-Ohio-397, ¶ 54. In State v.
Willis, 6th Dist. No. L-06-1244, 2007-Ohio-3959, the court found that the defendant's
unexplained delay of more than three years between obtaining the affidavit of a recanting
witness and the filing of a motion for leave to file a motion for new trial was unreasonable.
The court concluded "[o]n this basis alone, we find that the trial court did not abuse its
discretion when it denied [the defendant's] motion for leave to file a motion for new trial
without holding an evidentiary hearing." Id. at ¶ 23.
       {¶ 27} This court has already determined that the trial court did not abuse its
discretion in determining that appellant failed to sufficiently explain the 27-month delay in
filing his motion for leave. We thus cannot find that the trial court abused its discretion in
denying appellant's motion for leave without holding an evidentiary hearing.
       {¶ 28} Appellant's second assignment of error is overruled.
       {¶ 29} Having overruled appellant's first and second assignments of error, we
hereby affirm the judgment of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.
No. 19AP-505                                                                                  9

                                  BEATTY BLUNT, J., concurs.
                                    NELSON, J., dissents.

NELSON, J., dissenting.
         {¶ 1} Because I would sustain the second assignment of error and remand this
matter to the trial court for a hearing on Mr. Lundy's motion for leave to file a motion for a
new trial, I respectfully dissent.
         {¶ 2} At this juncture, all sides agree that we should analyze the issue before us –
that is, whether the trial court erred in acting without a hearing to deny the motion for leave
to file – without regard to the merits of the hypothetical new trial motion and without
regard, therefore, to whether the proffered affidavit is credible on matters relating to those
merits (and also without regard to the significance of arguments about DNA evidence as
introduced at trial having been discredited, or about changing witness testimony, or the
like).
         {¶ 3} Under these particular circumstances, involving claimed post-trial evidence
assertedly establishing actual innocence and in which (1) the convicted defendant explains
that he promptly forwarded the claimed exonerating evidence to his eventual lawyers at the
Ohio Innocence Project, (2) that evidence clearly suggests (despite the state's speculative
argument that examination of certain cell phone records "might have led to the discovery
of Watson prior to trial," see Appellee's Brief at 10) that he could not have procured it within
120 days of his conviction, and (3) the Innocence Project personnel claim to have proceeded
as they imply to the courts, and with the matters raised in the motion for leave offering
enough complexity that the trial court itself took some twenty months to assess the issue, a
hearing on the motion for leave seems to me indicated. That hearing could probe counsel's
processing/timeliness explanations, compare ¶ 21 above, and explore any prejudice to the
state occasioned by the delay, thereby addressing the hypothetical concern raised but not
specified by the state, compare Appellee's Brief at 6-7, citing State v. Berry, 10th Dist. No.
06AP-803, 2007-Ohio-2244, ¶ 39. It's a close issue as I read this record, and I fully
understand the rulings of the distinguished trial court and my colleagues on this panel, but
I do very respectfully dissent.
