[Cite as State v. Moore, 2018-Ohio-318.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2017-CA-49
                                                 :
 v.                                              :   Trial Court Case No. 2006-CR-1487
                                                 :
 MICHAEL MOORE                                   :   (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                           Rendered on the 26th day of January, 2018.

                                            ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio
45501
      Attorney for Plaintiff-Appellee

GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road N.E.,
Bloomingburg, Ohio 43106
      Attorney for Defendant-Appellant

                                           .............




WELBAUM, P.J.
                                                                                         -2-




       {¶ 1} Defendant-appellant, Michael Moore, appeals from the decision of the Clark

County Court of Common Pleas overruling his motion for new trial. For the reasons

outlined below, the judgment of the trial court will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On May 2, 2007, a jury found Moore guilty of two counts of murder, with

firearm specifications, and one count of having a weapon while under disability. We

affirmed Moore’s conviction on direct appeal, rejecting a challenge to the manifest weight

of the evidence presented at trial. State v. Moore, 2d Dist. Clark No. 2007-CA-40, 2008-

Ohio-2577.

       {¶ 3} Almost seven years later, on March 25, 2014, Moore filed a petition for post-

conviction relief alleging ineffective assistance of counsel in the investigation and

handling of his case. The trial court denied Moore’s petition on April 18, 2014, and we

affirmed this judgment in February 2015. State v. Moore, 2d Dist. Clark No. 2014-CA-

66, 2015-Ohio-550.

       {¶ 4} Following our decision affirming the denial of Moore’s petition for post-

conviction relief, on April 21, 2015, Moore filed a “motion for further proceedings.” As

part of this motion, Moore sought a ruling on a motion for new trial that he claimed to have

filed with the trial court on March 25, 2014. The trial court summarily overruled Moore's

“motion for further proceedings” and Moore appealed.

       {¶ 5} On appeal, we reversed and remanded the matter to the trial court based on

the following reasoning:
                                                                                          -3-


       The docket of the case and the record before us do not include a motion for

       new trial. However, at oral argument, Moore’s attorney produced a file-

       stamped copy of a Motion for New Trial, dated March 25, 2014, and which

       contained the correct case number. The State’s attorney indicated that he

       had never seen the motion, and the trial court’s terse judgment in response

       to the motion for further proceedings does not make clear that it had seen

       the motion for new trial. Under these unusual circumstances, and with the

       agreement of the parties, we will remand this matter to the trial court for it

       to consider whether to add the March 25, 2014 motion for new trial to the

       record, and then, if appropriate, to consider and rule on the motion.

State v. Moore, 2d Dist. Clark No. 2015-CA-70, 2016-Ohio-1473, ¶ 14.

       {¶ 6} On remand, the trial court considered and denied Moore’s motion for new

trial without adding either the motion or its supporting affidavits to the record. In denying

the motion, the trial court provided the following reasoning:

       Defendant has failed to meet his burden with the evidence presented in the

       affidavits attached to his motion because his motion is untimely, failed to

       show that there is a strong probability that the result of a new trial would be

       different, the information could have been discovered previously and the

       evidence merely attempts to impeach or contradict former evidence against

       him.   THEREFORE, Defendant has failed to present any new credible

       evidence and his motion for a new trial is DENIED.

Entry (May 17, 2016), Clark County Court of Common Pleas Case No. 2006-CR-1487,

Docket No. 49.
                                                                                           -4-


       {¶ 7} Moore appealed from the denial of his motion for new trial, arguing that the

trial court erred in denying the motion without holding an evidentiary hearing. On appeal,

we found that the trial court must have concluded that the motion for new trial was properly

filed since the trial court ruled on the motion. However, because the record still did not

include a copy of the motion and its supporting affidavits, we held that we were unable to

review the motion to determine whether an evidentiary hearing was required. Therefore,

because we had nothing to review, we once again remanded the matter back to the trial

court with instructions to make the motion for new trial part of the record. As part of this

decision, we also vacated the trial court’s May 17, 2016 entry that purported to overrule

the motion, which did not exist in the record, and further advised that once the trial court

makes the motion part of the record, it could reissue its entry denying the motion if it

deemed such an action appropriate. State v. Moore, 2d Dist. Clark No. 2016-CA-35,

2017-Ohio-984, ¶ 6.

       {¶ 8} On remand, the trial court issued an order on March 24, 2017, directing the

Clark County Clerk of Court to make Moore’s motion for new trial part of the record. The

motion was thereafter made part of the record and considered by the trial court.

       {¶ 9} In his motion for new trial, Moore moved the trial court to vacate his conviction

and grant him a new trial pursuant to Crim.R. 33(A)(6) on grounds of newly discovered

evidence. Moore also requested the trial court to hold an evidentiary hearing on the

matter. The newly discovered evidence advanced by Moore was an alleged statement

made by Omari Kittrell after Moore’s trial. Kittrell is one of two eyewitnesses who testified

to seeing Moore shoot the victim in the face at close range outside a bar in Springfield,

Ohio. Moore’s motion and two of his supporting affidavits allege that Kittrell told Moore’s
                                                                                          -5-


friend, Keenan Brown, that he had lied at trial when he testified about seeing Moore shoot

the victim.   Moore’s motion includes affidavits from himself and Brown, as well as

Moore’s mother, stepfather, girlfriend, and an individual who was allegedly at the

Springfield bar at the time of the shooting.

       {¶ 10} On April 28, 2017, the trial court issued an entry indicating that a copy of

Moore’s March 25, 2014 motion for new trial had been made part of the record and that

the motion was overruled. In overruling the motion, the trial court did not reiterate the

reasons it had set forth in its prior vacated entry of May 17, 2016. Instead, the trial court

merely stated the following: “Upon consideration of the defendant’s motion for a new trial,

the affidavits attached thereto, the State’s written response, and the law, said motion is

hereby OVERRULED.” Entry (April 28, 2017), Clark County Court of Common Pleas

Case No. 2006-CR-1487, Docket No. 55.

       {¶ 11} Moore now appeals from the trial court’s decision overruling his motion for

new trial, raising a single assignment of error for review.



                                  Assignment of Error

       {¶ 12} Moore’s sole assignment of error is as follows:

       THE TRIAL COURT ERRED IN FAILING TO ORDER A HEARING ON

       APPELLANT’S MOTION FOR NEW TRIAL.

       {¶ 13} Under his single assignment of error, Moore contends that the trial court

erred in overruling his Crim.R. 33 motion for new trial without first holding an evidentiary

hearing on the matter. We disagree.

       {¶ 14} Whether a motion for new trial and the material submitted with the motion
                                                                                        -6-

warrant an evidentiary hearing is within the sound discretion of the trial court. State v.

Clark, 2d Dist. Montgomery No. 17839, 2000 WL 1726851, *2 (Nov. 22, 2000), citing State

v. Prichard, 1st Dist. Hamilton No. C-990148, 1999 WL 1100139, *3 (Nov. 26, 1999) and

State v. Hill, 64 Ohio St.3d 313, 333, 595 N.E.2d 884 (1992). Therefore, “[a] trial court’s

decision on a Crim.R. 33 motion for a new trial will not be reversed absent an abuse of

discretion.” State v. Gillispie, 2d Dist. Montgomery No. 24456, 2012-Ohio-1656, ¶ 31,

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

syllabus; State v. Matthews, 81 Ohio St.3d 375, 378, 691 N.E.2d 1041 (1998). “ ‘Abuse

of discretion’ has been defined as an attitude that is unreasonable, arbitrary or

unconscionable.” (Citation omitted.) AAAA Enterprises, Inc. v. River Place Community

Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

       {¶ 15} As previously noted, Moore’s motion for new trial is based on Crim.R.

33(A)(6), which provides that a trial court may grant a new trial “[w]hen new evidence

material to the defense is discovered which the defendant could not with reasonable

diligence have discovered and produced at the trial.” There is a specific time limit in

which a motion for new trial based on newly discovered evidence must be filed. Pursuant

to Crim.R. 33(B): “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.”

       {¶ 16} In order to file a motion for new trial beyond the 120-day time limitation

specified in Crim.R. 33(B), a defendant must first seek leave of the trial court to file a

delayed motion. State v. Lanier, 2d Dist. Clark No. 2009-CA-84, 2010-Ohio-2921, ¶ 15,

citing State v. Warwick, 2d Dist. Champaign No. 01CA33, 2002 WL 1585663, *2 (July 19,
                                                                                          -7-

2002); State v. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 16 (2d

Dist.). “A trial court does not abuse its discretion in denying a motion for new trial filed

outside the Crim.R. 33(B) timeframe where the defendant does not first seek leave to file

the motion.” (Citations omitted.) State v. Golden, 10th Dist. Franklin No. 13AP-927,

2014-Ohio-2148, ¶ 10. Accord State v. Tucker, 8th Dist. Cuyahoga No. 95556, 2011-

Ohio-4092, ¶ 29.

       {¶ 17} To obtain leave to file a delayed motion for new trial, the defendant “must

demonstrate by clear and convincing evidence that he or she was unavoidably prevented

from timely filing the motion for a new trial or discovering the new evidence within the time

period provided by Crim.R. 33(B).” (Citations omitted.) Warwick at *2. “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 [for new trial] 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).

       {¶ 18} “The reference to ‘clear and convincing proof’ means something more than

bare allegations or statements in a motion.” State v. Morris, 2d Dist. Montgomery No.

26949, 2017-Ohio-1196, ¶19. “A defendant is entitled to a hearing on a motion for leave

to seek a new trial if he submits documents that on their face support his claim of being

unavoidably prevented from meeting Crim.R. 33’s time requirement.” State v. Hiler, 2d

Dist. Montgomery No. 27364, 2017-Ohio-7636, ¶ 12, citing Lanier at ¶ 16. If a defendant

fails to submit documentation in support of his allegation of unavoidable delay, it is

appropriate for the trial court to deny the defendant leave to file an untimely motion for
                                                                                            -8-

new trial. See Morris at ¶ 19.

       {¶ 19} Although the trial court did not provide its reasoning for overruling Moore’s

motion for new trial, under the specific circumstances of this case, we find that such a

decision was not an abuse of discretion. It is clear from the record that Moore’s motion

for new trial was untimely, as it was filed almost seven years after a jury found him guilty,

yet Moore never requested leave to file the motion out of time. In other words, Moore

filed his motion for new trial without properly moving the trial court to make a determination

on whether he was unavoidably prevented from timely filing his motion. The trial court

could have reasonably overruled Moore’s motion based on this procedural irregularity.

See Golden, 10th Dist. Franklin No. 13AP-927, 2014-Ohio-2148 at ¶ 10; Tucker, 8th Dist.

Cuyahoga No. 95556, 2011-Ohio-4092 at ¶ 29.

       {¶ 20} Moore also failed to demonstrate by clear and convincing proof that he was

unavoidably prevented from timely filing his motion for new trial. Moore’s only reference

to the delay in filing his motion is a vague allegation in the motion itself indicating that he

had only recently learned of the evidence on which his motion was based; i.e., that Kittrell

supposedly told Brown that he had testified falsely at Moore’s trial.            None of the

supporting affidavits filed with Moore’s motion specifically aver when Kittrell made this

statement to Brown, nor do the supporting affidavits state when Moore allegedly learned

of Kittrell’s purported statement. Furthermore, none of the supporting affidavits even

generally aver that Moore was unavoidably prevented from timely filing his motion for new

trial as a result of the timing of Kittrell’s alleged statement.

       {¶ 21} As previously noted, the burden to demonstrate clear and convincing proof

of unavoidable delay requires something more than bare allegations or statements in a
                                                                                           -9-

motion. Morris, 2d Dist. Montgomery No. 26949, 2017-Ohio-1196 at ¶ 19. Without

more than the allegation in Moore’s motion claiming that he just recently learned of

Kittrell’s statement to Brown, we find no abuse of discretion in the trial court’s decision to

overrule Moore’s motion for new trial without a hearing.

       {¶ 22} Moore’s sole assignment of error is overruled.



                                        Conclusion

       {¶ 23} Having overruled Moore’s sole assignment of error, the judgment of the trial

court is affirmed.



                                      .............



DONOVAN, J. and FROELICH, J., concur.



Copies mailed to:

Andrew P. Pickering
George A. Katchmer
Hon. Douglas M. Rastatter
