State v. Malone

Citations

• 2024 Ohio 5215

Syllabus

Motion for leave to file a motion for a new trial; hearing; \unavoidably prevented.\ To obtain leave to file a delayed new-trial motion, a defendant must demonstrate by clear and convincing proof that the defendant was unavoidably prevented from filing his motion for a new trial. Appellant fails to attest to the circumstances relating to his late discovery of the new evidence other than the fact that he discovered the new evidence in 2023, nine years after his conviction. Furthermore, the alleged new evidence consists of several journal entries and a docket in two cases, which are matters of public record. Appellant's affidavit offered no explanations for his efforts to uncover favorable evidence, the circumstances he discovered the new evidence, or the reasons for the nine-year delay. Because he has failed to demonstrate that he exercised due diligence to uncover the documents that have been in existence for years even before his conviction, we do not find an abuse of discretion by the trial court in denying the instant motion for leave. The trial court similarly did not abuse its discretion in denying appellant's motion without a hearing because he fails to carry his burden of submitting documents that on their face support his claim of being unavoidably prevented from discovering the new evidence.