[Cite as State v. Boone, 2017-Ohio-843.]
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                       No. 16AP-387
v.                                                :                (C.P.C. No. 97CR03-1639)

Shaughn C. Boone,                                 :               (REGULAR CALENDAR)

                 Defendant-Appellant.             :




                                           D E C I S I O N

                                      Rendered on March 9, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                 Taylor, for appellee.

                 On brief: Shaughn C. Boone, pro se.


                   APPEAL from the Franklin County Court of Common Pleas

KLATT, J.
        {¶ 1} Defendant-appellant, Shaughn C. Boone, appeals from a judgment of the
Franklin County Court of Common Pleas denying his motion for leave to file a motion for
new trial. For the following reasons, we affirm that judgment.
I. Factual and Procedural Background

        {¶ 2} In 1998, a jury found appellant guilty of four counts of felonious assault and
accompanying firearm specifications. The trial court sentenced appellant accordingly.
On appeal, this court affirmed those convictions. State v. Boone, 10th Dist. No. 98AP-352
(Dec. 24, 1998).
        {¶ 3} In the years that followed, appellant filed multiple post-conviction motions.
The present appeal concerns appellant's motion for leave to file a motion for new trial that
No. 16AP-387                                                                                             2

he filed in 2014. In that motion, appellant requested leave of the trial court to file an
untimely motion for new trial pursuant to Crim.R. 33(B). In his separately-filed motion
for new trial, appellant argued that he was innocent of the charges and requested a new
trial pursuant to Crim.R. 33(A)(6), which provides for a new trial if evidence material to
the defense is discovered which the defendant could not with reasonable diligence have
discovered and produced at trial. With that motion, appellant filed an affidavit from his
half-brother, which appellant claimed exonerated him of the charges. Appellant alleged
that he was unavoidably prevented from timely filing his motion because he did not know
that a claim of actual innocence could be made in a motion for new trial. The trial court
denied appellant's motion for leave to file an untimely motion for new trial on res judicata
grounds.
II. Appellant's Appeal

        {¶ 4} Appellant appeals and assigns the following errors:
                [1.] Whether the trial court abused its discretion thereby
                violating both due process and fundamental fairness, U.S.C.A.
                Const. Amends. 6 and 14, when it denied (without hearing)
                appellant's properly pled and substantively supported motion
                for leave to file delayed motion for new trial pursuant to
                Crim.R. 33.

                [2.] Whether the doctrine of res judicata is applicable [in]
                cases where the underlying judgment is contrary to law,
                and/or where such judgment must be disavowed on the basis
                of newly discovered exculpatory evidence demonstrating a
                fundamental miscarriage of justice.

III. A Motion for New Trial Based on Newly Discovered Evidence

        {¶ 5} Because appellant's two assignments of error both address whether the trial
court properly denied his motion for leave to file a motion for new trial, we address them
together.1 Appellant argues that the trial court erred by denying his properly supported


1 We reject the state's argument that appellant's motion had to be treated as a petition for postconviction
relief because that is the exclusive means for which a defendant may collaterally attack a conviction or
sentence. As this court has consistently stated, the Crim.R. 33 procedures for a new trial exist
independently from the R.C. 2953.21 procedure for postconviction relief. State v. Caulley, 10th Dist. No.
12AP-100, 2012-Ohio-2649, ¶ 18; State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 5, fn. 1;
State v. Lee, 10th Dist. No. 05AP-229, 2005-Ohio-6374, ¶ 13; State v. Burke, 10th Dist. No. 06AP-656,
2006-Ohio-4597, ¶ 10-11. The Supreme Court of Ohio has similarly concluded that a petition for
postconviction relief exists independently from a post-sentence Crim.R. 32.1 motion to withdraw a plea.
State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, ¶ 11-14. While the state argues that the logic in Bush
No. 16AP-387                                                                                          3

motion for leave on res judicata grounds. We affirm the trial court's decision to deny
appellant's motion but for different reasons than expressed by the trial court. State v.
Bridges, 10th Dist. No. 14AP-602, 2015-Ohio-4480, ¶ 20 (affirming trial court decision
"albeit it for a different reason than the one articulated by the trial court"); White v. Mt.
Carmel Med. Ctr., 150 Ohio App.3d 316, 2002-Ohio-6446, ¶ 30 (10th Dist.) ("[t]his court
is permitted to affirm a trial court's decision on different grounds").
    A. The Crim.R. 33 Procedure

        {¶ 6} Appellant filed his motion for new trial pursuant to Crim.R. 33(A)(6), which
provides that a new trial may be granted "[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." Such a motion must be filed within 120 days after the verdict is
rendered. Crim.R. 33(B). Appellant did not file his motion within the time frame required
by Crim.R. 33(B).
        {¶ 7} Because appellant did not file his motion for a new trial based on newly-
discovered evidence within 120 days of the jury's verdict, he correctly sought leave from
the trial court to file a delayed motion. State v. Hoover-Moore, 10th Dist. No. 14AP-1049,
2015-Ohio-4863, ¶ 13, citing State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244,
¶ 19. To obtain such leave, a defendant must demonstrate by clear and convincing proof
that he or she was unavoidably prevented from discovering the evidence within the 120
days. 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. 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).
        {¶ 8} In addition to the requirement that a defendant show he or she was
unavoidably prevented from discovering the evidence relied upon to support a motion for
new trial, a defendant also must show that he filed his motion for leave within a
reasonable time after discovering the evidence relied upon to support the motion for new
trial. State v. Grinnell, 10th Dist. No. 09AP-1048, 2010-Ohio-3028, ¶ 12, quoting State v.
Gray, 8th Dist. No. 92646, 2010-Ohio-11, ¶ 18; Berry at ¶ 37. In the event there has been

is "flawed and should not be extended," as an intermediate appellate court, we are bound by decisions of
the Supreme Court of Ohio.
No. 16AP-387                                                                               4

an undue delay between the time that the evidence was discovered and the filing of the
motion for new trial, the trial court must determine whether the delay was reasonable
under the circumstances or whether the defendant has adequately explained the reason
for the delay. Grinnell.
   B. Standard of Review

        {¶ 9} 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, 2012-Ohio-4733, ¶ 9. A trial court's decision whether
to conduct an evidentiary hearing on a motion for leave to file a motion for new trial is
also discretionary.   Hoover-Moore at ¶ 14, citing State v. Cleveland, 9th Dist. No.
08CA009406, 2009-Ohio-397, ¶ 54. 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.
   C. Analysis

        {¶ 10} In support of his motion for leave, appellant presented an affidavit from his
half-brother, Oliver Bryan, who stated that appellant was not involved in the offenses.
The affidavit appears to have been drafted in October of 1998 and was also filed in
support of petitions for postconviction relief appellant filed in 1998 and in 2000. Thus,
appellant could not have been unavoidably prevented from discovering the affidavit
because he has had the affidavit since at least 1998. Additionally, in his 2000 petition,
appellant wrote that he provided his trial counsel with accurate information to call Bryan
as a witness at his trial but that trial counsel did not call him as a witness. As this court
has previously held, a post-trial affidavit exonerating a defendant that was provided by a
witness who could have been called at trial, but was not, can never be considered newly-
discovered evidence. State v. Ambartsoumov, 10th Dist. No. 12AP-878, 2013-Ohio-3011,
¶ 23.
        {¶ 11} Next, to the extent appellant argued in the trial court that he also presented
newly-discovered evidence in the form of a forensic report, appellant failed to
demonstrate by clear and convincing proof that he was unavoidably prevented from
discovering the report. In fact, appellant did not argue that he was unavoidably prevented
No. 16AP-387                                                                                5

from discovering the evidence for his motion for new trial but that he did not discover it in
time to include it in a petition (we assume the petition for postconviction relief he filed in
2000). Additionally, appellant does not explain when he learned of or obtained the
report. In his motion before the trial court, he wrote that he did not become aware of the
report "until recently." He also wrote that he was unaware of the report until he found it
in the records given to him by his counsel. He does not, however, identify when he
received his file from counsel or when he discovered the report in the file. These vague
statements do not rise to the level of clear and convincing evidence that appellant was
unavoidably prevented from discovering the report. State v. Golden, 10th Dist. No. 09AP-
1004, 2010-Ohio-4438, ¶ 17.
IV. Conclusion

       {¶ 12} For these reasons, the trial court did not abuse its discretion by denying
appellant's motion for leave to file a motion for new trial without a hearing. Accordingly,
we deny appellant's two assignments of error and affirm the judgment of the Franklin
County Court of Common Pleas.
                                                                        Judgment affirmed.

                      LUPER SCHUSTER and HORTON, JJ., concur.
