[Cite as State v. Baldwin, 2014-Ohio-290.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2013CA00134
CHAD R. BALDWIN

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2005CR0649


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         January 27, 2014


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRERO,                               GREGORY SCOTT ROBEY
Prosecuting Attorney,                          Robey & Robey
Stark County, Ohio                             14402 Granger Road
                                               Cleveland, Ohio 44137
BY: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2013CA00134                                                          2

Hoffman, P.J.


         {¶1}   Defendant-appellant Chad R. Baldwin appeals the June 7, 2013 Judgment

Entry entered by the Stark County Court of Common Pleas denying his motion for new

trial and to vacate conviction. Plaintiff-appellee is the state of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   On February 17, 2006, Appellant was convicted by a jury of grand theft,

and the trial court imposed a sentence of sixteen months in prison. The trial court

granted judicial release on April 17, 2006.

         {¶3}   This Court affirmed Appellant's conviction and sentence in State v.

Baldwin, Stark App. No. 2006CA00076, 2007-Ohio-3511.

         {¶4}   On November 18, 2008, Appellant filed a motion for new trial alleging

newly discovered evidence. Specifically, Appellant alleged newly discovered evidence

as a result of a Federal law suit involving his former employer. After a hearing, the trial

court denied the motion. This Court affirmed the denial of the motion for new trial in

State v. Baldwin, Stark App. No. 2009CA00186, 2010-Ohio-3189.

         {¶5}   Appellant filed a second motion for new trial alleging newly discovered

evidence and misconduct on the part of a witness for the State.               The trial court

overruled the motion for new trial. This Court again affirmed the trial court's denial of

the motion for new trial in State v. Baldwin, Stark App. No. 2010CA00330, 2011-Ohio-

3205.

         {¶6}   On May 6, 2013, Appellant filed separate motions to vacate his conviction

for grand theft and for a new trial.

1
    A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Stark County, Case No. 2013CA00134                                                       3


         {¶7}   Via Judgment Entry of June 7, 2013, the trial court overruled the motions

for new trial and for vacation of his conviction.

         {¶8}   On July 1, 2013, Appellant filed a request for 120 day order of unavoidable

prevention and motion for reconsideration. Said motions remain pending before the trial

court.

         {¶9}   Appellant now appeals, assigning as error:

         {¶10} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY SUMMARILY

OVERRULING APPELLANT’S MOTION FOR NEW TRIAL WITHOUT A HEARING.

         {¶11} “II. THE TRIAL COURT’S JOURNAL ENTRY FAILS TO MAKE SPECIFIC

FINDINGS OF FACT ON ALL MATERIAL ISSUES RAISED.”

                                              I. and II.

         {¶12} Appellant's assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.

         {¶13} Ohio Criminal Rule 33 governs the filing of a motion for new trial. The rule

provides, in pertinent part,

         {¶14} "(A) Grounds

         {¶15} "A new trial may be granted on motion of the defendant for any of the

following causes affecting materially his substantial rights:

         {¶16} "***

         {¶17} "(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. When a motion for a new trial is made upon the ground of newly discovered

evidence, the defendant must produce at the hearing on the motion, in support thereof,
Stark County, Case No. 2013CA00134                                                     4


the affidavits of the witnesses by whom such evidence is expected to be given, and if

time is required by the defendant to procure such affidavits, the court may postpone the

hearing of the motion for such length of time as is reasonable under all the

circumstances of the case. The prosecuting attorney may produce affidavits or other

evidence to impeach the affidavits of such witnesses.

      {¶18} "(B) Motion for new trial; form, time

      {¶19} "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.

      {¶20} "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." (Emphasis added.)

      {¶21} Here, it is undisputed Appellant's motions for a new trial and to vacate his

conviction were not filed within one hundred twenty days after the day upon which the
Stark County, Case No. 2013CA00134                                                         5


verdict was rendered. Appellant did not demonstrate in his motion by clear and

convincing evidence he was unavoidably prevented from discovering the alleged newly

discovered evidence within one hundred twenty days of the verdict. Appellant did not

seek leave of the court to file the motions for new trial and to vacate his conviction

(essentially seeking a new trial) asserting he was unavoidably prevented from timely

discovering the new evidence.2

       {¶22} A defendant must first seek leave to file a delayed motion for a new trial.

State v. Mathis, 134 Ohio App.3d 77 (1999). A trial court may not consider the merits of

the motion for a new trial until it makes a finding of unavoidable delay. State v. Lanier,

2d Dist. No.2009 CA 84, 2010–Ohio–2921, ¶ 17.

       {¶23} A defendant is “unavoidably prevented” from filing a motion for new trial if

the defendant “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.” State v. Walden, 19 Ohio App.3d 141,

145–146 (10th Dist.1984); State v. Lake, 5th Dist. No.2010 CA 88, 2011–Ohio–261, ¶

37.

       {¶24} Moreover, no hearing is required, and leave may be summarily denied,

where neither the motion nor its supporting affidavits embody prima facie evidence of

unavoidable delay. State v. Peals, 6th Dist. No. L–10–1035, 2010–Ohio–5893, ¶ 23,

citing Lanier at ¶ 22; State v. Clumm, 4th Dist. No. 08CA32, 2010–Ohio–342, ¶ 28;

State v. Bush, 10th Dist. No. 08AP–627, 2009–Ohio–441, ¶ 12; State v. Parker, 178




2
 Appellant filed a motion in the trial court asserting unavoidable delay after the trial
court’s denial of his motion.
Stark County, Case No. 2013CA00134                                                     6

Ohio App.3d 574, 2008–Ohio–5178, ¶ 21 (2d Dist.); State v. Norman, 10th Dist. No.

04AP–1312, 2005–Ohio–5087, ¶ 9.

       {¶25} We find the trial court did not err in summarily denying Appellant's motions

for new trial and to vacate the conviction.

       {¶26} Appellant's first and second assignments of error are overruled.

By: Hoffman, P.J.

Gwin, J. and

Wise, J. concur
