[Cite as State v. Quinn, 2014-Ohio-5211.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                   Court of Appeals Nos. L-14-1037
                                                                      L-14-1045
        Appellee
                                                Trial Court No. CR200502529
v.

Jeremy J. Quinn, Jr.                            DECISION AND JUDGMENT

        Appellant                                Decided: November 21, 2014

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        David F. Cooper, Assistant Prosecuting Attorney, for appellee.

        Jeremy J. Quinn, Jr., pro se.

                                            *****

        PIETRYKOWSKI, J.

        {¶ 1} Jeremy J. Quinn, Jr., appellant, appeals judgments of the Lucas County

Court of Common Pleas filed on February 10 and 14, 2014, denying post judgment

motions by Quinn in his criminal case. In the February 10, 2014 judgment, the trial court

denied Quinn’s motion for leave to file a motion for a new trial. In the February 14, 2014

judgment, the trial court denied Quinn’s “motion to vacate void sentence.”
                                      Case History

       {¶ 2} Quinn was convicted of one count of kidnapping (a violation of R.C.

2905.01(A)(4)) and six counts of rape (violations of R.C. 2907.02(A)(2)) based upon

guilty verdicts returned by a jury at trial in November 2005 in the Lucas County Court of

Common Pleas. The court filed its judgment of conviction and sentence in the case on

December 9, 2005.

       {¶ 3} Appellant made a direct appeal of the judgment. In a decision and judgment

filed on February 29, 2008, this court affirmed. State v. Quinn, 6th Dist. Lucas No.

L-06-1003, 2008-Ohio-819. The Ohio Supreme Court denied leave for further appeal on

August 6, 2008. State v. Quinn, 119 Ohio St.3d 1410, 2008-Ohio-3880, 891 N.E.2d 770.

       {¶ 4} Appellant filed an App.R. 26(B) application for reopening the direct appeal

on June 18, 2008. We denied the application to reopen on July 17, 2008. State v. Quinn,

6th Dist. Lucas No. L-06-1003, 2008-Ohio-3579. Appellant filed a second App.R. 26(B)

application for reopening on May 27, 2011. We denied the second application on

July 28, 2011. State v. Quinn, 6th Dist. Lucas No. L-06-1003, 2011-Ohio-3717. The

Ohio Supreme Court denied appellate review of the July 28, 2011 judgment on

November 16, 2011. State v. Quinn, 130 Ohio St.3d 1440, 2011-Ohio-5883, 957 N.E.2d

301.

       {¶ 5} Appellant pursued federal habeas corpus relief. In a January 18, 2012

judgment, the United States Court of Appeals for the Sixth Circuit ordered the grant of

federal habeas corpus relief, requiring resentencing on Blakely v. Washington, 542 U.S.




2.
296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) grounds. Quinn v. Ohio Dept. Rehab. and

Corr., 6th Cir. No. 10-3490 (Jan. 18, 2012). Upon federal mandate, the trial court

conducted a State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470

resentencing hearing on August 8, 2012 to remedy Blakely sentencing errors. The trial

court also filed a resentencing judgment on that date.

       {¶ 6} Appellant appealed the resentencing judgment to this court. In a January 31,

2014 judgment, we affirmed. State v. Quinn, 6th Dist. Lucas No. L-12-1242, 2014-Ohio-

340. We denied appellant’s App.R. 26(B) application to reopen the resentencing appeal

on May 8, 2014.

       {¶ 7} Appellant filed both motions concerned in this appeal while the resentencing

appeal was pending in this court. The motion for leave to file a motion for a new trial

was filed on January 29, 2014. The “motion to vacate void sentence” was filed on

February 11, 2014. Appellant filed timely appeals of the trial court judgments denying

both motions. We have consolidated the appeals for proceedings in this court and placed

them on the accelerated calendar.

       {¶ 8} Appellant asserts two assignments of error:

              Assignment of Error No. 1. The trial court erred when denying

       appellant’s motion for new trial, violating rights guaranteed within the State

       and Federal Constitution. (A) There was clear and convincing proof that

       appellant was prevented unavoidably from filing his motion for a new trial




3.
       within the timeframe. (B) The trial court erred in denying appellant’s

       motion for a new trial creating a manifest miscarriage of justice.

              Assignment of Error No. 2. The trial court erred when denying

       appellant’s motion for relief from judgment in not issuing findings of fact

       and conclusions of law, violating rights guaranteed within the State and

       Federal Constitutions.

                        Denial of Leave to File Motion for New Trial

       {¶ 9} Appellant argues that the trial court erred in failing to grant him leave to file

a motion for a new trial. Appellant contends that the motion should have been granted

because he was provided ineffective assistance of counsel and because of claimed

prosecutorial misconduct, under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963), in suppressing until trial the nature and results of DNA testing

conducted by the state. The grounds are interrelated. Appellant contends that counsel

was deficient in failing to object on Brady grounds to the state’s failure to disclose before

trial that DNA testing conducted by the state demonstrated the existence of seminal fluid

in the alleged victim’s vaginal vault and the fact that the state did not conduct DNA

testing of the semen.

       {¶ 10} The state argues that the motion for leave to file was properly denied

because it was time barred under Crim.R. 33(B) and appellant failed to prove by clear

and convincing evidence that he was unavoidably prevented from filing a motion for a

new trial in a timely manner.




4.
       {¶ 11} Crim.R. 33(A) sets forth six grounds on which a trial court may grant a

defendant’s motion for a new trial in a criminal case. Crim.R. 33(B) sets forth time limits

for such motions and requirements to secure leave of court to file a motion for a new trial

after the time limits set forth in the rule have expired. The jury returned its verdict in this

case on November 15, 2005. The motion for leave to file a motion for a new trial was

filed more than eight years after verdict.

       {¶ 12} Where a motion for a new trial is based upon grounds set forth in Crim.R.

33(A)(1)-(5), the motion “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.” Crim.R.

33(B). In order to file at a later time, the rule requires the defendant to establish “by clear

and convincing proof that the defendant was unavoidably prevented from filing his

motion for a new trial * * * within the time provided.” Id.

       {¶ 13} Motions for a new trial under Crim.R. 33(A)(6), based upon 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.” Id. Such a motion may be filed at a later time where the defendant

demonstrates “by clear and convincing proof that the defendant was unavoidably

prevented from the discovery of the evidence upon which he must rely.”

       {¶ 14} For purposes of the rule, unavoidably prevented from filing a motion for a

new trial means “the party had no knowledge of the existence of the ground supporting

the motion for new trial and could not have learned of the existence of that ground within




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the time prescribed for filing the motion for new trial in the exercise of reasonable

diligence.” State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th

Dist.1984).

       {¶ 15} An appellate court reviews the denial of leave to file a motion for a new

trial under Crim.R. 33 under an abuse of discretion standard. State v. Willis, 6th Dist.

Lucas No. L-06-1244, 2007-Ohio-3959, ¶ 12. Appellant failed to argue in the trial court

that he was unavoidably prevented from filing a motion for a new trial on a timely basis.

He presented no evidence in support of such a claim. Facts showing the existence of the

Brady issues concerning DNA testing were in evidence at trial.

       {¶ 16} As appellant failed to establish by clear and convincing proof that he was

unavoidably prevented from filing his motion for a new trial within the time provided

under Crim.R. 33(B), we conclude that the trial court properly denied appellant leave to

file a motion for a new trial.

       {¶ 17} We find assignment of error No. 1 not well-taken.

       {¶ 18} Assignment of error No. 2 concerns the trial court’s denial of appellant’s

“motion to vacate void sentence,” which was filed on February 11, 2014. Appellant

argues that the motion constituted a petition for postconviction relief under R.C. 2953.21

and that the trial court erred in failing to issue findings of fact and conclusions of law in

its judgment denying the motion. In the motion, appellant argued that his convictions are

void on the basis that the jury verdict forms did not comply with R.C. 2945.75.




6.
       {¶ 19} We have recognized that a failure to comply with the requirements of R.C.

2945.75 with respect to jury verdict forms does not render a sentence pursuant to the

verdict void. State v. Henson, 6th Dist. Erie No. E-11-068, 2012-Ohio-3730, ¶ 18.

       {¶ 20} The state argues that the petition for postconviction relief was properly

denied because it was not filed within the 180 day period set forth in R.C. 2953.21(A)(2).

The state also argues that the claimed error as to the jury verdict forms under R.C.

2945.75 could have been asserted on direct appeal in 2008, was not, and consequently is

barred by res judicata. We agree.

       {¶ 21} R.C. 2953.21(A)(2) requires that a petition for postconviction relief “shall

be filed no later than one hundred eighty days after the date on which the trial transcript

is filed in the court of appeals in the direct appeal of the judgment of conviction or

adjudication.” The trial transcript in this case was filed on direct appeal on April 6, 2006.

This application for postconviction relief was filed on February 11, 2014, more than

seven years after the 180 day statutory period set forth in R.C. 2953.21(A)(2) expired.

       {¶ 22} A trial court lacks jurisdiction to consider an untimely petition for

postconviction relief, filed after the 180 day period, unless the delay in filing is excused

under R.C. 2953.23(A). State v. Guevara, 6th Dist. Lucas No. L-12-1218, 2013-Ohio-

728, ¶ 8. Under R.C. 2953.23(A)(1) an exception allowing for late filing “if the

petitioner can show that he was unavoidably prevented from discovery of the facts upon

which the claim for relief is based and but for the constitutional errors, no reasonable




7.
factfinder would have found petitioner guilty. R.C. 2953.23(A)(1)(a) and (b).” State v.

Sandoval, 6th Dist. Sandusky No. S-11-042, 2012-Ohio-5806, ¶ 5.

          {¶ 23} R.C. 2953.23(A)(2) provides another exception with respect to DNA

evidence in felony convictions that does not apply to this appeal. The grounds for which

postconviction relief was sought in the February 11, 2014 motion concern claimed

noncompliance of jury verdict forms with R.C. 2945.75.

          {¶ 24} A trial court lacks jurisdiction to consider an untimely petition for

postconviction relief, filed after the 180 day period, unless the delay in filing is excused

under R.C. 2953.23(A). Guevara at ¶ 8. Accordingly, we conclude that the trial court

did not err in denying appellant’s February 11, 2014 motion seeking postconviction

relief.

          {¶ 25} Under such circumstances a trial court is not required to issue findings of

fact and conclusions of law with respect to its denial of postconviction relief. The

requirement under R.C. 2953.21(G) that a trial court file findings of fact and conclusions

of law when a court denies a petition for postconviction relief is not applicable to the trial

court’s rejection of an untimely petition for postconviction relief under R.C. 2953.23.

State ex rel. Hach v. Summit Cty. Court of Common Pleas, 102 Ohio St.3d 75, 2004-

Ohio-1800, 806 N.E.2d 554, ¶ 9, citing State ex rel. Reynolds v. Basinger, 99 Ohio St.3d

303, 2003-Ohio-3631, 791 N.E.2d 459, ¶ 7.

          {¶ 26} The doctrine of res judicata bars claims that were raised or could have been

raised at trial or on direct appeal:




8.
              Under the doctrine of res judicata, a final judgment of conviction

       bars a convicted defendant who was represented by counsel from raising

       and litigating in any proceeding except an appeal from that judgment, any

       defense or any claimed lack of due process that was raised or could have

       been raised by the defendant at the trial, which resulted in that judgment of

       conviction, or on an appeal from that judgment. State v. Perry, 10 Ohio

       St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

       {¶ 27} Whether the jury verdict forms complied with statutory requirements is an

issue that could have been raised on direct appeal. State v. Henson, 6th Dist. Erie No.

E-13-029, 2013-Ohio-4833, ¶ 7. Accordingly, we conclude that assignment of error No.

2 is also barred by res judicata.

       {¶ 28} We find assignment of error No. 2 not well-taken.

       {¶ 29} As justice has been afforded the party appealing, we affirm the judgments

of the Lucas County Court of Common Pleas. We order appellant to pay the costs of

these appeals pursuant to App.R. 24.


                                                                       Judgments affirmed.




9.
                                                               State v. Quinn
                                                               C.A. Nos. L-14-1037
                                                                          L-14-1045




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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