[Cite as State v. Golden, 2014-Ohio-2148.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                      :

                 Plaintiff-Appellee,                :                No. 13AP-927
                                                                  (C.P.C. No. 00CR-4404)
v.                                                  :
                                                               (REGULAR CALENDAR)
Travis Golden,                                      :

                 Defendant-Appellant.               :



                                             D E C I S I O N

                                       Rendered on May 20, 2014


                 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
                 appellee.

                 Travis Golden, pro se.

                   APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Travis Golden, appeals from an entry of the Franklin
County Court of Common Pleas denying his motion for a new trial. Because the trial court
did not err in denying appellant's motion for a new trial, we affirm.
I. Facts and Procedural History
        {¶ 2} In February 2001, appellant was convicted, pursuant to a jury verdict, of
one count of murder with a firearm specification and one count of improperly discharging
a firearm into a habitation or school with a firearm specification for the June 29, 2000
shooting death of Erskine James Hamber. In a February 26, 2001 judgment entry the
trial court sentenced appellant to a total of 21 years to life in prison. Appellant appealed,
and this court affirmed the judgment in State v. Golden, 10th Dist. No. 01AP-367, 2001-
Ohio-8769. Appellant subsequently filed an application to reopen his appeal pursuant to
No. 13AP-927                                                                            2

App.R. 26(B), and this court denied appellant's application in State v. Golden, 10th Dist.
No. 01AP-367 (Dec. 10, 2002) (memorandum decision).               This court also denied
appellant's motion for reconsideration of the denial of his application to reopen his appeal
in State v. Golden, 10th Dist. No. 01AP-367 (Mar. 4, 2003) (memorandum decision).
       {¶ 3} On July 6, 2009, appellant filed a motion for leave to file an untimely
motion for new trial under Crim.R. 33(B), or, in the alternative, a petition for
postconviction relief under R.C. 2953.21. Appellant alleged he had newly discovered
evidence showing prosecutorial misconduct. The trial court denied appellant's request for
leave on the basis that appellant had not shown he was unavoidably prevented from
discovering the alleged newly discovered evidence before the expiration of the time limits
set forth in Crim.R. 33(B).     The trial court also dismissed appellant's petition for
postconviction relief as untimely. Appellant appealed the denial of his motion for leave to
file a motion for new trial and the dismissal of his petition for postconviction relief, and
this court affirmed in State v. Golden, 10th Dist. No. 09AP-1004, 2010-Ohio-4438.
       {¶ 4} On September 4, 2013, appellant filed a motion for a new trial on the basis
of newly discovered evidence. In his motion, appellant asserted Keith Alexander signed
an affidavit stating that another inmate at the county jail, Lee Gill, approached Alexander
to inquire whether he would be interested in testifying against appellant in exchange for a
lighter sentence. According to appellant, the Alexander affidavit is newly discovered
evidence sufficient to warrant a new trial. In an October 3, 2013 entry, the trial court
denied appellant's motion for new trial because appellant did not seek leave to file a
delayed motion for new trial as required by Crim.R. 33. Appellant timely appeals.
II. Assignments of Error
       {¶ 5} On appeal, appellant assigns the following two assignments of error for our
review:
              [1.] The trial court abused its discretion when it enforced R.C.
              Crim.R. 33(B), a state statutory requirement, although it
              clearly conflicts with the defendant's substantial
              constitutional right(s) guaranteed by the United States
              Constitutions 6th and / or 14th Amendments.

              [2.] The trial court abused its discretion when it denied the
              defendant's motion for a new trial — because that deprived
              the defendant of his substantial constitutional right(s) to
No. 13AP-927                                                                            3

              Compulsory Process and/or the Due-process Clause;
              guaranteed by the United States Constitutions 6th and / or
              14th Amendments.

Because appellant's assignments of error are interrelated, we address them jointly.
III. Discussion – Crim.R. 33 Motion for New Trial
       {¶ 6} Appellant's assignments of error assert the trial court improperly overruled
appellant's motion for a new trial.
       {¶ 7} The decision of whether to grant a new trial pursuant to a Crim.R. 33 rests
within the sound discretion of the trial court. State v. Schiebel, 55 Ohio St.3d 71 (1990),
paragraph one of the syllabus. An appellate court reviews a trial court's determination of
a Crim.R. 33 motion for an abuse of discretion. Id.; State v. Townsend, 10th Dist. No.
08AP-371, 2008-Ohio-6518, ¶ 8. An abuse of discretion implies the trial court's decision
was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
       {¶ 8} A trial court may grant a new trial under Crim.R. 33(A)(6) "[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." The language of Crim.R.
33 makes it clear that a trial court should not grant a new trial " 'unless it affirmatively
appears from the record that a defendant was prejudiced by one of the grounds stated in
the rule, or was thereby prevented from having a fair trial.' " State v. Salinas, 10th Dist.
No. 09AP-1201, 2010-Ohio-4738, ¶ 41, quoting Columbus v. Carroll, 10th Dist. No.
96APC01-90 (Aug. 27, 1996), citing Crim.R. 33(E).
       {¶ 9} The rule further provides a time limit in which defendant has to file the
motion. "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."
Crim.R. 33(B). Further, "[i]f 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). Thus, where a defendant seeks to file a motion for
new trial beyond the 120-day time limit, Crim.R. 33(B) requires the defendant to first
No. 13AP-927                                                                                 4

obtain leave before seeking a new trial. State v. Graggs, 10th Dist. No. 13AP-852, 2014-
Ohio-1195, ¶ 5.
       {¶ 10} Here, the jury rendered its verdict of appellant's conviction in February
2001. Appellant filed his motion for new trial on September 4, 2013, more than 12 years
after the jury returned its verdict and well outside the 120-day timeframe of Crim.R.
33(B). 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. Salinas at ¶ 45-46; State v. Ingram, 10th Dist. No. 08AP-937, 2009-Ohio-
2755, ¶ 16-17; State v. Jones, 10th Dist. No. 08AP-551, 2008-Ohio-6515, ¶ 13. Thus,
because appellant did not seek leave to file his motion for new trial, the trial court did not
abuse its discretion in denying the motion.
       {¶ 11} We also note that to the extent appellant argues Crim.R. 33(B) is
unconstitutional because the time limits contained therein prevent him from presenting
evidence favorable to his alleged innocence, appellant did not raise that issue in the trial
court. Failure to raise the issue of the constitutionality of a statute or its application at the
trial court level generally constitutes waiver of that issue and need not be heard for the
first time on appeal. State v. Adams, 10th Dist. No. 12AP-83, 2012-Ohio-5088, ¶ 43,
citing State v. Awan, 22 Ohio St.3d 120 (1986), syllabus, holding limited by In re M.D., 38
Ohio St.3d 149 (1988).
IV. Conclusion
       {¶ 12} For the foregoing reasons, we overrule appellant's two assignments of error
and affirm the judgment of the Franklin County Court of Common Pleas.
                                                                           Judgment affirmed.

                             BROWN and O'GRADY, JJ., concur
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