[Cite as State v. Rodriguez-Baron, 2012-Ohio-5360.]


                        STATE OF OHIO, MAHONING COUNTY

                               IN THE COURT OF APPEALS

                                     SEVENTH DISTRICT

STATE OF OHIO,                                        )
                                                      )
        PLAINTIFF-APPELLEE,                           )
                                                      )
V.                                                    )          CASE NO. 12-MA-44
                                                      )
ARMANDO RODRIGUEZ-BARON,                              )             OPINION
                                                      )
        DEFENDANT-APPELLANT.                          )

CHARACTER OF PROCEEDINGS:                             Criminal Appeal from Court of
                                                      Common Pleas of Mahoning County,
                                                      Ohio
                                                      Case No. 05CR490B

JUDGMENT:                                             Affirmed

APPEARANCES:
For Plaintiff-Appellee
For Plaintiff-Appellee
Paul Gains
Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503
 For Defendant-Appellant
 For Defendant-Appellant
 
For Defendant-Appellant
Armando C. Rodriguez-Baron, Pro-se
Armando C. Rodriguez-Baron, Pro-se
#530-175
P.O. Box 8107
Mansfield, Ohio 44901       

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JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
      Dated: November 16, 2012
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      Dated:           November         16,   2012   
    Dated:             November          16,   2012   
    Dated: November 16, 2012
                               
        Dated: November 16, 2012
                           
       Dated:
                       November        16,        2012   
    Dated:
                       November         16,        2012   
   Dated: November 16, 2012
                       
 Dated: November 16, 2012
                         
Dated:                 November           16,         2012   

[Cite as State v. Rodriguez-Baron, 2012-Ohio-5360.]


DONOFRIO, J.

        {¶1}    Defendant-appellant, Armando Rodriguez-Baron, appeals from a
Mahoning County Common Pleas Court judgment denying his motion for leave to
file a motion for new trial.
        {¶2}    In appellant’s direct appeal, we set out the facts as follows:

                On May 17, 2005, the Alcohol, Tobacco, and Firearms Task
        Force executed a search warrant at Daniel Morales's home in
        Youngstown. The task force broke down the door. In the house,
        they found Morales, his wife, and their three children. They also
        found appellant and co-defendant Frank Deltoro in a bedroom.
                Under the stairs in the basement, officers located a duffel
        bag with a 35-pound brick of marijuana. The bag had the name
        “Deltoro” on it. They also found a black trash bag containing 24
        baggies each containing approximately one pound of marijuana.
        Officers also found a scale and more baggies nearby. Throughout
        the rest of the house, officers located more marijuana in smaller
        quantities hidden in various places.
                According to Morales's testimony, appellant, Deltoro, and
        two other men arrived at his house on May 13, 2005. In the trunk of
        their car, the men had clothes and two bricks of marijuana. The
        men unloaded the marijuana and took it to the basement of
        Morales's house. Appellant and Deltoro spent the night there. The
        next day all of the men, including appellant, went into Morales's
        basement and separated, weighed, and bagged one of the bricks of
        marijuana. They did not get around to separating the other brick of
        marijuana.
                On May 26, 2005, a Mahoning County grand jury indicted
        appellant, Deltoro, and Morales on one count of possession of
        marijuana,      a    second-degree            felony   in   violation   of   R.C.
        2925.11(A)(C)(3)(f), and one count of trafficking in marijuana, a
                                                                                       -


       first-degree felony in violation of R.C. 2925.03(A)(2)(C)(3)(f).
              Appellant and Deltoro filed a motion requesting that the trial
       court compel the state to provide them with the identity of its
       confidential informant (CI). This led to the first appeal in this case
       on the state's appeal of the trial court's order that it was required to
       disclose the CI's identity to appellant and Deltoro. See State v.
       Deltoro, 165 Ohio App.3d 750, 848 N.E.2d 558, 2006-Ohio-1280.
       The parties eventually entered into an agreement. In exchange for
       not having to reveal the CI's identity, the state agreed to drop the
       trafficking charge and prosecute appellant and Deltoro only on the
       possession charge. In a June 29, 2006 judgment entry, the court
       sustained the state's motion to dismiss the trafficking in marijuana
       charge.
              ***
              The trial proceeded to a joint jury trial solely on the
       possession of marijuana count. Morales pleaded guilty to
       conspiring to traffic marijuana and testified against appellant and
       Deltoro. The jury found both appellant and Deltoro guilty. The trial
       court subsequently sentenced appellant to eight years in prison.

State v. Rodriguez-Baron, 7th Dist. No. 07-MA-86, 2008-Ohio-4816, ¶2-6, 8.
This court affirmed appellant’s conviction.
       {¶3}   On January 17, 2010, appellant filed a pro se motion for leave to
file a motion for new trial.    Appellant attached the affidavit of co-defendant
Deltoro. In the affidavit, Deltoro claimed responsibility for the crimes and averred
that appellant had no involvement. The trial court denied appellant’s motion
without a hearing.
       {¶4}   Appellant filed a timely notice of appeal on February 15, 2012.
       {¶5}   Appellant, still acting pro se, now raises a single assignment of
error, which states:

              THE TRIAL COURT COMMITTED REVERSIBLE ERROR
                                                                                         -


       IN DENYING APPELLANT’S MOTION FOR FINDING THAT HE
       WAS UNAVOIDABLY PREVENTED FROM DISCOVERING NEW
       EVIDENCE WITHIN 120 DAYS OF VERDICT WHEN A RECENT
       AFFIDAVIT      WAS      PREPARED        BY     APPELLANT’S        CO-
       DEFENDANT JUST WEEKS PRIOR TO THE FILING OF THE
       INSTANT MOTION.

       {¶6}   Appellant argues that as soon as he received Deltoro’s affidavit, he
motioned the trial court for a hearing. At the minimum, appellant contends the
trial court should have held a hearing on his motion. He claims that he was
convicted based only on the testimony of his other co-defendant, Morales.
Therefore, he claims that Deltoro’s affidavit at least warranted a hearing.
       {¶7}   A trial court's decision to grant or deny a new trial on grounds of
newly discovered evidence falls within the court's sound discretion.          State v.
Hawkins, 66 Ohio St.3d 339, 350, 612 N.E.2d 1227 (1993). Likewise, it is within
the trial court’s discretion to determine whether or not it is necessary to hold an
evidentiary hearing on a new trial motion. State v. Green, 7th Dist. No. 05-MA-
116, 2006-Ohio-3097, ¶11.       Therefore, we will not reverse such a decision
absent an abuse of discretion. Abuse of discretion connotes more than an error
of law or judgment; it implies the trial court's judgment was arbitrary,
unreasonable, or unconscionable. State v. Adams, 62 Ohio St. 151, 157, 56
N.E.2d 654 (1980).
       {¶8}   In this case, the trial court denied appellant leave to file a delayed
motion for new trial. Thus, we must examine the timeliness of appellant's motion.
       {¶9}   Crim.R. 33(B) addresses timeliness when the basis of a new trial
motion is newly discovered evidence:

              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.

       {¶10} Because appellant's motion was filed well outside the 120-day
period, he was required to obtain leave of court to file his motion for new trial.
       {¶11} Leave of court must be granted before the merits of the motion are
reached. State v. Lordi, 149 Ohio App.3d 627, 2002-Ohio-5517, 778 N.E.2d 605,
¶25 (7th Dist.). The moving party must prove unavoidable delay by clear and
convincing evidence in order to obtain leave.           Id. at ¶26; Crim.R. 33(B).
Unavoidable delay results when the party had no knowledge of the existence of
the ground supporting the motion for a new trial and could not have learned of
the existence of that ground within the required time in the exercise of
reasonable diligence. Id. citing, State v. Walden, 19 Ohio App.3d 141, 146, 1483
N.E.2d 859 (1984). The requirement of clear and convincing evidence puts the
burden on the defendant to prove he was unavoidably prevented from
discovering the evidence in a timely manner. State v. Fortson, 8th Dist. No.
82545, 2003-Ohio-5387, ¶12.
       {¶12} This is not the case of a newly discovered witness whom the
defendant learned of after trial. In this case, appellant and Deltoro were co-
defendants. They were together before and during the ATF raid on Morales’s
house, they were indicted together, and they stood trial together. And because
appellant and Deltoro were together during the raid at Morales’s house, appellant
had access to all of the same information and observations about the drugs and
the raid as Deltoro did. Therefore, it stands to reason that appellant was not
unavoidably delayed in discovering any evidence that Deltoro knew. Thus, we
cannot conclude that the trial court abused its discretion in denying appellant’s
motion for leave to file a motion for new trial.
       {¶13} Accordingly, appellant’s sole assignment of error is without merit.
       {¶14} For the reasons stated above, the trial court’s judgment is hereby
                         -


affirmed.

Vukovich, J., concurs.

Waite, P.J., concurs.
