[Cite as State v. Stoutamire, 2019-Ohio-4737.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                   :     OPINION

                 Plaintiff-Appellee,             :
                                                       CASE NO. 2019-T-0033
        - vs -                                   :

DWAYNE A. STOUTAMIRE,                            :

                 Defendant-Appellant.            :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 07 CR
148.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

Dwayne A. Stoutamire, pro se, PID# A532-253, Northeast Ohio Correctional Center,
2240 Hubbard Road, Youngstown, OH 44505 (Defendant-Appellant).


MATT LYNCH, J.

        {¶1}     Defendant-appellant, Dwayne A. Stoutamire, appeals the May 14, 2019

Judgment Entry of the Trumbull County Court of Common Pleas, denying his Motion for

New Trial and Request for Evidentiary Hearing. For the following reasons, we affirm the

Judgment of the court below.

        {¶2}     On August 1, 2007, Stoutamire was ordered to serve an aggregate prison

sentence of thirty-four years following his convictions for two counts of Having Weapons
While Under Disability, Felonious Assault with Firearm Specification, Abduction with

Firearm Specification, and Aggravated Robbery.           Stoutamire’s convictions were

affirmed on appeal. State v. Stoutamire, 11th Dist. Trumbull No. 2007-T-0089, 2008-

Ohio-2916.

      {¶3}   On October 9, 2018, Stoutamire filed a Motion for New Trial pursuant to

Criminal Rule 33(A) and (B) and Request for Evidentiary Hearing.

      {¶4}   On December 20, 2018, the State filed its Response.

      {¶5}   On May 14, 2019, the trial court issued a Judgment Entry, denying

Stoutamire’s Motion. The Entry stated: “Defendant has failed to establish that he was

unavoidably prevented from obtaining the evidence for which his motion is based upon.”

      {¶6}   On June 10, 2019, Stoutamire filed a Notice of Appeal.           On appeal,

Stoutamire raises the following assignment of error: “The trial court abused its discretion

when it failed to make a reasoned decision.”

             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.

Crim.R. 33(B).

      {¶7}   “A motion for new trial pursuant to Crim.R. 33(B) is addressed to the

sound discretion of the trial court, and will not be disturbed on appeal absent an abuse

of discretion.” State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990), paragraph

one of the syllabus.




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       {¶8}   Stoutamire argues on appeal that the trial court erred by not giving “any

reasoned decision” as to why it denied his Motion: “without the trial court giving a basis

of how it came to its decision there is no way for a higher court to determine if the trial

court’s decision is sound or even if he had even had a reason to deny my motion.”

Appellant’s brief at 4.

       {¶9}   The State counters that “a trial judge has no duty to issue findings of fact

and conclusions of law in the denial of a Crim.R. 33 Motion for New Trial.” Appellee’s

brief at 6, citing State ex rel. Collins v. Pokorny, 86 Ohio St.3d 70, 711 N.E.2d 683

(1999) (“[a]s the court of appeals correctly held, Judge Pokorny had no duty to issue

findings of fact and conclusions of law when he denied Collins’s Crim.R. 33 motion for a

new trial”); State v. Jones, 9th Dist. Summit No. 28547, 2019-Ohio-1870, ¶ 14.

       {¶10} Regardless of whether he was required to do so, the trial judge in the

present case did state his basis for denying Stoutamire’s Motion: “Defendant has failed

to establish that he was unavoidably prevented from obtaining the evidence for which

his motion is based upon.” Moreover, the record is sufficient for this court to review the

soundness of the lower court’s decision to deny the Motion. In other words, this court

may review the reasons for the delay set forth in Stoutamire’s Motion to determine

whether they justified its denial.

       {¶11} In the Motion for New Trial, Stoutamire acknowledged that “the time to file

a motion for a new trial * * * has passed so I must meet the requirement of Crim.R.

33(B).” He claimed that he was unavoidably prevented from raising the claims in his

Motion because trial counsel refused to produce his case file containing exculpatory

documents of which he was unaware. In an attached affidavit, Stoutamire averred that,




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following his trial, he made repeated requests to obtain his case file which trial counsel

consistently ignored.    After numerous written requests for the case file received no

response, he filed a grievance against trial counsel. According to the affidavit: “he [trial

counsel] responded to the griev[a]nce on June 5, 2012 by giving me his case file * * *

which now brings upon this motion.”

       {¶12} According to the record before this court, Stoutamire obtained his case file

in June 2012, five years after he was found guilty of his crimes and over six years

before he filed his Motion for New Trial.         The issue of whether Stoutamire was

“unavoidably prevented” from obtaining his case file for five years and/or whether he

exercised reasonable diligence in obtaining the file is arguable. Given the record, a trial

court could, in the exercise of its discretion, decide the issue either way and that

decision would not necessarily be “unreasonable, arbitrary or unconscionable.” State v.

Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, ¶ 27.                 What is not

arguable is that the six-year delay in filing the Motion for New Trial after obtaining his file

was not reasonable and that Stoutamire has not offered an explanation for this delay.

       {¶13} In the Motion for New Trial, Stoutamire “point[s] out that there is no time

limit in filing a Crim.R. 33(B).” While Criminal Rule 33(B) does not prescribe a time limit

for seeking leave to file a motion following the discovery of new evidence, this and

virtually every other appellate court in Ohio has held that leave must be sought within a

reasonable time.

       {¶14} The First Appellate District, affirming the denial of a motion for new trial

made “over six years after [the defendant’s] receiving the evidence on which his * * *

claim depended,” ruled: “even if the defendant has demonstrated that he could not have




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learned of the proposed ground for a new trial within the prescribed period, a court has

the discretion to deny leave to move for a new trial, when the defendant has delayed

moving for leave after discovering the evidence supporting that ground, and that delay

was neither adequately explained nor reasonable under the circumstances.” State v.

Thomas, 2017-Ohio-4403, 93 N.E.3d 227, ¶ 10, 9 (1st Dist.). The court summarized:

              Crim.R. 33(B) does not prescribe the time within which a motion for
              leave must be filed after the movant has learned of the proposed
              ground for a new trial. But the Second, Fourth, Sixth, Seventh,
              Eighth, Ninth, Tenth, Eleventh, and Twelfth Appellate Districts
              require the filing of a Crim.R. 33(B) motion within a reasonable time
              after the evidence supporting that ground was discovered. See
              State v. Seal, 4th Dist. Highland No. 16CA14, 2017-Ohio-116, ¶ 12-
              14; State v. Brown, 186 Ohio App.3d 309, 927 N.E.2d 1133, ¶ 24
              (7th Dist.2010); State v. Cleveland, 9th Dist. Lorain No.
              08CA009406, 2009-Ohio-397, ¶ 49; State v. Willis, 6th Dist. Lucas
              No. L-06-1244, 2007-Ohio-3959,¶ 20-23; State v. Berry, 10th Dist.
              Franklin No. 06AP-803, 2007-Ohio-2244, ¶ 27-29; State v.
              Valentine, 11th Dist. Portage No. 2002-P-0052, 2003-Ohio-2838, ¶
              9; State v. York, 2d Dist. Greene No. 2000 CA 70, 2001 WL
              332019, *3-4 (Apr. 6, 2001); State v. Barnes, 12th Dist. Clermont
              No. CA99-06-057, 1999 WL 1271665, *3 (Dec. 30, 1999); State v.
              Stansberry, 8th Dist. Cuyahoga No. 71004, 1997 WL 626063, *3
              (Oct. 9, 1997). Those courts found that a reasonable-time
              requirement is permitted as not inconsistent with the criminal rules,
              see Crim.R. 57(B), and advances the stated objective of those rules
              in securing the speedy and sure administration of justice and in
              eliminating unjustifiable delay, see Crim.R. 1(B), by discouraging a
              defendant from waiting to move for leave while the evidence
              against him dissipates or disappears. See Seal at ¶ 12; Barnes at
              *3; Stansberry at *3. No appellate district has refused to impose a
              reasonable-time requirement.

Id. at ¶ 8.

       {¶15} Apart from the issue of whether Stoutamire was “unavoidably prevented”

from obtaining his case file, the Motion for New Trial was properly denied for not being

filed within a reasonable time following the discovery of the evidence on which it is

based.



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      {¶16} The sole assignment of error is without merit.

      {¶17} For the foregoing reasons, the Judgment of the Trumbull County Court of

Common Pleas, denying Stoutamire’s Motion for New Trial, is affirmed. Costs to be

taxed against the appellant.



THOMAS R. WRIGHT, P.J.,

MARY JANE TRAPP, J.,

concur.




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