Summary
This appellate opinion from the Ohio First District Court of Appeals addresses a criminal defendant's appeal from the denial of his Crim.R. 33(B) motion for leave to file a motion for a new trial. The court affirmed the trial court's decision, finding that the defendant failed to prove by clear and convincing evidence that he was unavoidably prevented from discovering the alleged new evidence or trial irregularities within the statutory filing deadlines. The court also dismissed additional assignments of error due to lack of jurisdiction and because the underlying motion for a new trial had been denied.
Topics
Practice areas
Questions Presented
- Whether Brand satisfied the "unavoidably prevented" standard for a Crim.R. 33(B) motion
- Whether this appellate court has jurisdiction to consider the remaining assignments of error not designated in the notice of appeal
Holdings
- The court affirmed the lower court's denial of the Crim.R. 33(B) motion because Brand failed to demonstrate, by clear and convincing proof, that he was unavoidably prevented from discovering the grounds supporting his motion within the statutory time limits.
- The court dismissed the second, third, and fourth assignments of error because the appellant did not designate those issues in the notice of appeal and the court lacks jurisdiction to consider them.
Key quotations
““Unavoidably prevented” 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 in the exercise of reasonable diligence.”” (¶20)
“We hold that Brand has not demonstrated how, using reasonable diligence, he was unavoidably prevented from discovering the grounds supporting his motion for a new trial until recently.” (¶24)
Factual background
In May 2014 Brand and co‑defendants entered C.M.'s apartment, tied up K.B., and shot C.M., K.B., and B.W., resulting in two deaths. Evidence included a photographic lineup identification, a handgun recovered from Brand's residence, and various forensic reports. Brand later pleaded guilty to trafficking and weapon possession charges.
Procedural history
Brand was convicted of multiple offenses after a 2014 shooting. He later filed a Crim.R. 33(B) motion for a new trial based on alleged newly discovered evidence and claimed he was unavoidably prevented from discovering the grounds earlier. The Common Pleas Court denied the motion; Brand appealed.