[Cite as State v. [D.M.], 2015-Ohio-4257.]


                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                     No. 15AP-603
v.                                                 :              (C.P.C. No. 09CR-5355)

[D.M.],                                            :           (ACCELERATED CALENDAR)

                 Defendant-Appellant.              :




                                             D E C I S I O N

                                     Rendered on October 13, 2015


                 Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for
                 appellee.

                 D.M., pro se.

                   APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.

        {¶ 1} Defendant-appellant, D.M., appeals from a decision of the Franklin County
Court of Common Pleas denying his motion for leave to file a delayed motion for a new
trial. Because we agree that D.M. was not unavoidably prevented from filing the motion
before now, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On September 4, 2009, D.M. was indicted for two counts of rape, one count
of sexual battery, and three counts of gross sexual imposition based on sexual conduct
and intercourse with his stepdaughter who was 11 or 12 at the time. He pled not guilty on
September 9, 2009. The common pleas court held a trial on the matter on March 1 and 2,
2010. At trial, the state dismissed one count of rape and one count of gross sexual
No. 15AP-603                                                                                 2


imposition, and the trial court renumbered the charges for trying the remaining charges
to the jury.
       {¶ 3} After deliberations, on March 4, 2010, the jury found D.M. guilty of all
counts (other than the two dismissed counts). The trial court held a sentencing hearing
on March 11, 2010. At the hearing, the trial court merged the rape and sexual battery
charges and sentenced D.M. to ten years to life on the rape charge. The trial court also
sentenced D.M. to five years on each of the two gross sexual imposition counts and
ordered him to serve those sentences concurrently with each other but consecutively to
the ten years to life that the court imposed for the rape conviction. In total, the trial court
sentenced D.M. to serve 15 years to life in prison.
       {¶ 4} On April 13, 2010, the state requested leave to appeal, and the next day,
April 14, 2010, D.M. appealed as of right. The state sought to appeal the trial court's
decision to exclude statements D.M. allegedly made to his minister while seeking
counseling with that clergy member. D.M.'s appeal asserted first, that the trial court
should not have sentenced on both gross sexual imposition and rape on the alleged
ground that gross sexual imposition is a lesser included offense of rape; second, that the
trial should not have imposed consecutive sentences without making required findings;
and third, that D.M.'s convictions were against the manifest weight of the evidence and
supported by insufficient evidence. In a decision issued June 30, 2011, we denied the
state leave to appeal and overruled D.M.'s three assignments of error. State v. [D.M.],
10th Dist. No. 10AP-337, 2011-Ohio-3301.
       {¶ 5} On July 8, 2014, D.M. attempted to file by mail while incarcerated a motion
for leave to file a delayed motion for new trial but, for reasons unknown, the motion was
not filed. However, a motion for leave was filed on August 12, 2014 and supported by an
affidavit from D.M.     D.M. argued in his motion that he had been prevented from
discovering the improperly prejudicial contents of "State's Exhibit A," which had been
introduced at trial, that he had only recently become aware of Exhibit A's contents, and
that as a result he was prevented from filing a motion for new trial. The state responded
in opposition on August 15, 2014 and attached as an exhibit a discovery pleading
originally filed in the case approximately two months before trial, noting that records
comprising Exhibit A had been delivered by the state in discovery to D.M.'s counsel. On
No. 15AP-603                                                                              3


August 27, 2014, D.M. replied and, on August 29, 2014, supplemented his reply with a
number of letters between D.M. and various attorneys dating from April 2010 through
August 2011 regarding various matters.
        {¶ 6} On May 28, 2015, the trial court denied D.M.'s motion for leave to file a
delayed motion for new trial. On June 22, 2015, D.M. timely appealed.
II. ASSIGNMENTS OF ERROR
        {¶ 7} D.M. asserts two assignments of error:
              1. IN DENYING APPELLANT'S MOTION FOR LEAVE TO
              FILE FOR A NEW TRIAL, THE TRIAL COURT ABUSED ITS
              DISCRETION.

              2.  THE   TRIAL  COURT'S   DECISION  DENYING
              APPELLANT'S MOTION IS UNREASONABLE, AND ALSO,
              CONTRARY TO CRIMINAL RULE 33.

Because these assignments of error are intertwined, we address them together.
III. DISCUSSION
        {¶ 8} "We review a court's denial of a motion for leave to file a delayed motion for
new trial under an abuse of discretion standard." State v. Bass, 10th Dist. No. 13AP-1052,
2014-Ohio-2915, ¶ 13, citing State v. Townsend, 10th Dist. No. 08AP-371, 2008-Ohio-
6518.
        {¶ 9} Crim.R. 33 sets forth the bases on which one may obtain a new trial, in
relevant part, as follows:
              (A) Grounds. A new trial may be granted on motion of the
              defendant for any of the following causes affecting materially
              his substantial rights:

              (1) Irregularity in the proceedings, or in any order or ruling of
              the court, or abuse of discretion by the court, because of which
              the defendant was prevented from having a fair trial;

              ***

              (6) When new evidence material to the defense is discovered
              which the defendant could not with reasonable diligence have
              discovered and produced at the trial.

Crim.R. 33 also sets forth the timing for motions for a new trial:
No. 15AP-603                                                                               4


              (B) Motion for new trial; form, time. Application for a
              new trial shall be made by motion which, except for the cause
              of newly discovered evidence, shall be filed within fourteen
              days after the verdict was rendered, or the decision of the
              court where a trial by jury has been waived, unless it is made
              to appear by clear and convincing proof that the defendant
              was unavoidably prevented from filing his motion for a new
              trial, in which case the motion shall be filed within seven days
              from the order of the court finding that the defendant was
              unavoidably prevented from filing such motion within the
              time provided herein.

              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} A motion for a new trial "shall be filed within fourteen days after the verdict
was rendered" or, if the motion for new trial is made "on account of newly discovered
evidence [it] shall be filed within one hundred twenty days after the day upon which the
verdict was rendered." Crim.R. 33(B). The jury returned a verdict in D.M.'s trial on
March 4, 2010. As D.M. did not attempt to file a motion for a new trial until 2014, he is
well beyond either of the time limits set forth in Crim.R. 33. However, a party may seek
leave to file a motion for a new trial based on Crim.R. 33(A)(1) if "it is made to appear by
clear and convincing proof that the defendant was unavoidably prevented from filing his
motion for a new trial" within the 14-day time limit. Crim.R. 33(B). " '[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 for a new trial and could not have
learned of the existence of that ground within the time prescribed for filing the motion for
[a] new trial in the exercise of reasonable diligence.' " State v. Wilson, 10th Dist. No.
02AP-1350, 2003-Ohio-5892, ¶ 12, quoting State v. Walden, 19 Ohio App.3d 141, 145-46
(10th Dist.1984). Alternatively, a party may also seek leave to file a motion for a new trial
outside the 120-day limit for motions based on "newly discovered evidence" if the party
No. 15AP-603                                                                                5


shows "by clear and convincing proof that he was unavoidably prevented from the
discovery of the evidence pursuant to Crim.R. 33(B)." Townsend at ¶ 7.
       {¶ 11} D.M. argues that he, personally, did not know what was in Exhibit A. He
argues that, as a result, until now, he did not have a basis for filing a motion or objecting
to the introduction of Exhibit A. However, D.M. has not shown that the defense, being a
represented "party," was unaware of Exhibit A or could not have become aware of its
contents by the exercise of reasonable diligence. Wilson at ¶ 12. Nor has he shown that
Exhibit A was "newly discovered evidence" within the meaning of the Rules of Criminal
Procedure. Newly discovered evidence, for purposes of Crim.R. 33, is evidence "which the
defendant could not with reasonable diligence have discovered and produced at the trial."
Crim.R. 33(A)(6). Exhibit A was produced in discovery by the state to the defense in
January 2010, two months before trial. A witness testified about Exhibit A's contents at
trial, and Exhibit A was admitted without objection at trial. While we accept that D.M.
was incarcerated at the county jail pending trial and unable to personally file motions or
personally or extensively review the exhibits in his cell, D.M. does not assert that his trial
counsel was unaware of Exhibit A or that his counsel was prevented from objecting to it or
filing appropriate motions concerning it.      D.M. is unable to credibly claim that the
defense, as a represented "party," was "unavoidably prevented from * * * discover[ing]" an
exhibit that was in his attorney's possession for two months prior to trial, its contents
discussed during testimony and admitted at trial. Crim.R. 33(B); Wilson at ¶ 12.
       {¶ 12} The record also does not suggest that D.M.'s counsel, by failing to object or
to file a timely motion based on Exhibit A, was ineffective such that we could conclude
that D.M. has "newly discovered" his counsel's ineffectiveness, nor does D.M. actually
raise this point in this appeal. Our review of Exhibit A indicates that it included forensic
hearsay information, information regarding other, previous acts by D.M., and a mention
of an alleged confession by him to clergy. However, it also included information about the
victim's sexual history, inconsistencies between what the victim reported to the
interviewer and what she testified to at trial, and other material potentially prejudicial to
the prosecution. In short, some of the material in Exhibit A could have legitimately been
subject to objection by both the defense and prosecution, depending on which party
sought to introduce the material. Yet, both defense and prosecution could also have
No. 15AP-603                                                                              6


calculated that Exhibit A, in total, was more helpful than harmful to their respective cases
and chosen not to object to its admission. The failure by D.M.'s counsel to object to the
admission of Exhibit A does not raise an inference that he was ineffective or unaware of
its contents, and in no way can be characterized as "newly discovered." State v. Johnson,
112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 140, citing Lundgren v. Mitchell, 440 F.3d 754,
774 (6th Cir.2006), citing State v. Campbell, 69 Ohio St.3d 38, 52-53 (1994) (explaining
that a strategic failure to object is not ineffective assistance even where there is a
legitimate legal ground for objecting).
IV. CONCLUSION
       {¶ 13} We overrule D.M.'s two assignments of error and affirm the decision of the
Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.

                            KLATT and DORRIAN, JJ., concur.
