State v. Smith

Summary

The Ohio Tenth District Court of Appeals affirmed the denial of Thomas L. Smith’s motion for leave to file a delayed motion for a new trial. The court held that Smith did not establish by clear and convincing evidence that he was unavoidably prevented from discovering or filing claims based on an alibi or ineffective assistance of counsel, and it noted that the record contradicted his assertion that counsel failed to file a suppression motion.

Holdings

1. A defendant seeking leave to file a delayed motion for new trial must establish by clear and convincing evidence that the defendant was unavoidably prevented from filing the motion or discovering the evidence on which it is based. Smith failed to make that showing because he knew of his alleged alibi before trial and knew of counsel's alleged refusal to present it.
2. An alibi known to the defendant before trial is not newly discovered evidence under Crim.R. 33(A)(6), even if the defendant did not present it at trial.
3. Smith could not relitigate his challenge to the allegedly suggestive pretrial identification in a motion for leave to file a delayed motion for new trial because trial counsel had filed and litigated a suppression motion and any further challenge could have been raised in earlier proceedings.

Questions Presented

1. Whether the trial court abused its discretion by denying Smith leave to file a delayed motion for new trial.
2. Whether Smith established by clear and convincing evidence that he was unavoidably prevented from discovering the grounds supporting his proposed new-trial motion.
3. Whether Smith's challenge concerning the allegedly suggestive identification was barred by res judicata.

Disposition

affirmed