[Cite as State v. Young, 2019-Ohio-3819.]




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


State of Ohio                                    Court of Appeals No. E-18-042

        Appellee                                 Trial Court No. 2015 CR 0013

v.

Randal T. Young                                  DECISION AND JUDGMENT

        Appellant                                Decided: September 20, 2019


                                            *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Anthony A. Battista III, Assistant Prosecuting Attorney,
        for appellee.

        Randal T. Young, pro se.

                                            *****

        MAYLE, P.J.

        {¶ 1} The defendant-appellant, Randal Young, appeals a June 27, 2018 decision

by the Erie County Court of Common Pleas that denied his motion for a new trial. For

the following reasons, we affirm the lower court’s judgment.
                                    Procedural History

       {¶ 2} Following a crime spree that included robbing a gas station at gunpoint and

attempting to break into an ATM machine, Young was charged with the following

offenses: aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the first

degree (Count 1); theft in violation of R.C. 2913.02(A)(4), a felony of the fifth degree

(Count 2); two safecracking violations brought under R.C. 2911.31(A), felonies of the

fourth degree (Counts 3 and 7); two felonious assaults in violation of R.C. 2903.11(A)(2),

felonies of the second degree (Counts 4 and 5); having weapons while under disability in

violation of R.C. 2923.13(A)(2), a felony of the third degree (Count 6); vandalism in

violation of R.C. 2909.05(B)(1)(b), a felony of the fifth degree (Count 8); attempted theft

in violation of R.C. 2923.02(A), a misdemeanor of the first degree (Count 9); and

possession of criminal tools in violation of R.C. 2923.24(A), a felony of the fifth degree

(Count 10). Firearm specifications pursuant to R.C. 2941.141 and 2941.145 were

charged in the indictment as to Counts 1, 2, 3, 4, 5, and 6. An additional indictment

charged Young under R.C. 2941.149, with being a repeat violent offender as to Counts 1,

4 and 5.

       {¶ 3} A jury found Young guilty on all ten counts and that he was a repeat violent

offender, and the trial court sentenced him to 36 years in prison. Young appealed the

December 15, 2015 judgment, raising two assignments of error. In the first, he cited

three instances of ineffective assistance of trial counsel, which we rejected in toto. State

v. Young, 6th Dist. Erie No. E-16-003, 2017-Ohio-4476 (“Young I”), ¶ 12 - 16. In his



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second assignment of error, Young alleged that the trial court erred in allowing the jury to

determine his repeat violent offender (“RVO”) status. We agreed with Young that R.C.

2941.149(B) requires the trial court, not the jury, to make the RVO determination.

“Young I” at ¶ 17-22 (overuling State v. Hopkins, 6th Dist. Erie No. E-10-027, 2011-

Ohio-5908). We otherwise affirmed Young’s conviction, and we remanded the case to

the lower court for the sole purpose of resentencing him on the RVO specification. We

held,

               [O]ur reversal in this matter is limited to the sentencing finding that

        [Young] is a repeat violent offender. In this case, [Young’s] prior

        convictions would have been admissible to prove the possessions of

        weapons under disability charge pursuant to R.C. 2923.13. We further note

        that under these circumstances, the finding by the jury rather than the court

        that appellant is a repeat violent offender constitutes harmless error as there

        would have been no reasonable probability that this evidence may have

        contributed to appellant’s underlying convictions. See State v. Rahman, 23

        Ohio St.3d 146, 151, 492 N.E.2d 401 (1986).

Young I at ¶ 21, appeal not allowed, 151 Ohio St.3d 1475, 2017-Ohio-9111, 87

N.E.3d 1272, ¶ 21, and appeal not allowed, 152 Ohio St.3d 1411, 2018-Ohio-723,

92 N.E.3d 881 ¶ 21.

        {¶ 4} Following our order of remand, the trial court resentenced Young to the

same 36-year prison term on June 14, 2018, and Young appealed. In his sole assignment



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of error, Young claimed that the trial court’s erroneous submission of the RVO

specification to the jury amounted to prejudicial, not harmless, error. On May 10, 2019,

we affirmed the lower court’s resentencing judgment. State v. Young, 6th Dist. Erie No.

E-18-035, 2019-Ohio-1815, (“Young II”), appeal not allowed, 156 Ohio St.3d 1478,

2019-Ohio-3148.

       {¶ 5} On June 13, 2018, Young filed a “Motion for a New Trial,” in the trial court.

In the motion, Young reasserted his claims that he was prejudiced by the jury hearing

evidence with regard to the “nature” of his prior offenses and that his trial counsel was

ineffective for failing to object to that evidence. Young also added a Fourth Amendment

claim with regard to a document containing his address and phone number that police

obtained from a Western Union branch. According to the record, Young visited a

Western Union office within a Kroger grocery store following the robbery and wired

money to a woman in his home state of Tennessee. Young I at ¶ 7. In his motion,

Young claimed that the police could not obtain his Western Union paperwork from

Kroger without first obtaining a warrant. On June 27, 2018, the trial court denied

Young’s motion for a new trial, and he appealed. It is this appeal that is currently before

us. Young asserts the following assignments of error:

              First Assignment of Error: Appellant received constitutionally

       ineffective assistance of counsel and was deprived of a fair trial and due

       process of law as garanteed [sic] by the 14th Amendment of the U.S.

       Constitution and Section 16, Article 1 of the Ohio Constitution.



4.
             Second Assignment of Error: The trial court erred when it allowed

      evidence obtained from an illegal search and seizure into court violating the

      5th [sic] Amendment of the U.S. Constitution, and Article 1, Section 10 of

      the Ohio Constitution.

             Third Assignment of Error: The trial court erred when it allowed

      the “nature” of the appellant’s prior offenses to be submitted to the jury to

      convict the appellant of “having weapons under disability” which denied

      the appellant of a fair trial and due process of law as guaranteed by the 14th

      Amendment of the U.S. Constitution and Section 16, Article 1 of the Ohio

      Constitution.

                                   Law and Analysis

      {¶ 6} Crim.R. 33(A) provides six grounds upon which a defendant may request a

new trial. Young’s motion sought relief under Crim.R. (A)(1) and (5), which provides,

             (A) Grounds. A new trial may be granted on motion of the

      defendant for any of the following causes affecting materially his

      substantial rights:

             (1) Irregularity in the proceedings, or in any order or ruling of the

      court, or abuse of discretion by the court, because of which the defendant

      was prevented from having a fair trial; * * *

             (5) Error of law occurring at the trial; * * *.




5.
       {¶ 7} Crim.R. 33(B) governs the timing for filing such a motion for a new trial. It

provides

              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, * * * 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.

       {¶ 8} Thus, a motion for leave is a necessary prerequisite for a defendant who

wishes to file a Crim.R. 33(A)(1) or (5) motion for a new trial more than 14 days after the

jury verdict.1 State v. Smith, 8th Dist. Cuyahoga No. 100588, 2014–Ohio–4799, ¶ 9. To

be entitled to leave, the defendant must demonstrate that he was “unavoidably prevented”

from making timely application. Crim.R. 33(B). “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 the time prescribed for filing the motion for new trial



1
  A motion for new trial on account of newly discovered evidence (i.e., a motion for new
trial pursuant to Crim. R. 33(A)(6)) may be filed, without leave of court, within 120 days
after verdict “or the decision of the court where trial by jury has been made.” Young’s
motion is not based upon any purported newly discovered evidence.

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in the exercise of reasonable diligence.’” State v. Quinn, 6th Dist. Lucas Nos. L-14-1037,

L-14-1045, 2014-Ohio-5211, ¶ 14, quoting State v. Walden, 19 Ohio App.3d 141, 145–

146, 483 N.E.2d 859 (10th Dist.1984). Upon a trial court’s finding a motion for leave

well-taken, the defendant then has seven days to file a motion for a new trial.

       {¶ 9} 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. Quinn at ¶ 15. An abuse of

discretion connotes more than an error of law or judgment; it implies that the court’s

attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 10} Here, the jury returned its verdict on December 11, 2015. Young filed a

“Motion for a New Trial” on June 13, 2018―more than 30 months after the jury

verdict―without first seeking leave to file this motion. Because Young failed to comply

with the necessary procedural steps set forth in Crim.R. 33(B), the trial court properly

overruled his motion for a new trial. See State v. Norman, 10th Dist. Franklin No. 04AP–

1312, 2005–Ohio–5087, ¶ 8 (Defendant’s failure to obtain leave of court was a sufficient

basis for overruling the motion); State v. Mir, 7th Dist. Mahoning No. 12 MA 210, 2013–

Ohio–2880, ¶ 12 (Defendant’s failure to file a motion for leave is reason enough to

sustain the trial court’s decision); State v. Tucker, 8th Dist. Cuyahoga No. 95556, 2011–

Ohio–4092, ¶ 29.

       {¶ 11} Even if we were to liberally construe Young’s pro se motion as a motion

for leave to file a new trial, there are no facts to suggest that he was unavoidably



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prevented from filing the motion for a new trial on a timely basis. The facts underlying

the claims set forth in his motion, i.e. ineffective assistance of counsel, illegal search and

seizure, and prejudicial evidence put to the jury, were all known during the trial. Indeed,

Young’s first and third assignments of error were the subjects of his direct appeal. We

find no clear and convincing proof that that Young was unavoidably prevented from

filing a motion within the time provided under Crim.R. 33(B).

       {¶ 12} Finally, even if Young could overcome the procedural hurdles, the claims

set forth in his motion are all barred by the doctrine of res judicata. Under that doctrine a

convicted defendant is barred from litigating issues that were raised or could have been

raised at trial or on direct appeal from the judgment of conviction:

              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.

       {¶ 13} To overcome the res judicata bar, a petitioner must present cogent, material

evidence found dehors, or outside, of the record on appeal. State v. Cole, 2 Ohio St.3d

112, 443 N.E.2d 169 (1982).




8.
       {¶ 14} In his first assignment of error, Young asserts an ineffective assistance of

counsel claim. As discussed, Young previously raised an ineffective assistance claim on

direct appeal. Although his reasons for now asserting the claim are different than those

raised in Young I, Young does not rely upon any new evidence dehors the record.

Therefore, the doctrine of res judicata bars him from raising this ineffective assistance of

counsel claim.

       {¶ 15} In his second assignment of error, Young alleges that the trial court erred

“when it allowed evidence obtained from [the] illegal warrantless search and seizure” of

the Western Union document from Kroger. This claim could have been raised on direct

appeal, and it is therefore barred by res judicata. See Perry at 182. In addition, we note

that Young has no standing to assert this challenge. Rakas v. Illinois, 439 U.S. 128, 134,

99 S.Ct. 421, 425, 58 L. Ed. 2d 387 (1978) (“A person who is aggrieved by an illegal

search and seizure only through the introduction of damaging evidence secured by a

search of a third person’s premises or property has not had any of his Fourth Amendment

rights infringed.”).

       {¶ 16} Finally, in his third assignment of error, Young alleges that the trial court

erred when it allowed “the nature” of his prior offenses to be submitted to the jury in

violation of Crim.R. 404(B). We have previously found that evidence of Young’s prior

convictions was “admissible to prove the possessions of weapons under disability

charge.” Young I at ¶ 21. Young may not re-litigate that issue. State v. Casey, 12th Dist.

Clinton No. CA2017-08-013, 2018-Ohio-2084, ¶ 20.



9.
                                       Conclusion

       {¶ 17} We find that the trial court did not abuse its discretion in denying Young’s

motion for new trial, and Young’s assignments of error are not well-taken. The June 27,

2018 judgment of the Erie County Court of Common Please is affirmed. Young is

ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                                      Judgment affirmed.




       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
Christine E. Mayle, P.J.
                                               _______________________________
Gene A. Zmuda, 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.supremecourt.ohio.gov/ROD/docs/.




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