State v. ONeil

2023 Ohio 1089

• Court: Ohio Court of Appeals
• Decided: March 31, 2023
• Docket: 2020-P-0030
• Status: Published

Opinion

[Cite as State v. ONeil, 2023-Ohio-1089.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

STATE OF OHIO, CASE NO. 2022-P-0030

Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas

CURTIS L. ONEIL, Trial Court No. 2008 CR 00177 Defendant-Appellant.

OPINION

Decided: March 31, 2023 Judgment: Affirmed

Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Eric J. Allen, The Law Office of Eric J. Allen, Ltd., 4200 Regent, Suite 200, Columbus, OH 43219 (For Defendant-Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant, Curtis L. ONeil (“Mr. ONeil”),1 appeals the judgment of the

Portage County Court of Common Pleas, in which the court denied, without a hearing, his

motion for leave to file a motion for a new trial.

{¶2} Mr. ONeil raises two assignments of error, contending that the trial court

abused its discretion by (1) overruling his motion for leave and (2) denying his request for

an evidentiary hearing.

1. The record indicates that appellant’s last name has been spelled at various times as “O’Neil.” For purposes of this appeal, this court will use the spelling set forth in the indictment, which is “ONeil.” {¶3} After a careful review of the record and pertinent law, we agree with the trial

court that the documents Mr. ONeil submitted in support of his motion for leave did not,

on their face, support the claim that he was unavoidably prevented from timely

discovering the new evidence upon which he relies. Therefore, the trial court did not

abuse its discretion in denying Mr. ONeil’s motion for leave or in failing to hold an

evidentiary hearing on that motion.

{¶4} Thus, we affirm the judgment of the Portage County Court of Common

Pleas.

Substantive and Procedural History

{¶5} In 2008, the Portage County Grand Jury indicted Mr. ONeil for rape, a first-

degree felony, in violation of R.C. 2907.02(A)(2); aggravated robbery, a first-degree

felony, in violation of R.C. 2911.01(A)(1) and (C); aggravated burglary, a first-degree

felony, in violation of R.C. 2911.11(A)(2) and (B); kidnapping, a first-degree felony, in

violation of R.C. 2905.01(A)(2)/(4) and (C); and intimidation, a third-degree felony, in

violation of R.C. 2921.04(B) and (D). Each offense included a firearm specification. The

state alleged that Mr. ONeil and another individual burst into an apartment in Kent, Ohio,

where they aimed guns and stole money from the occupants. While searching one of the

bedrooms, Mr. ONeil allegedly raped one of the female occupants at gunpoint.

{¶6} Mr. ONeil pleaded not guilty to the offenses, and the case was tried to a

jury. The jury was unable to reach a verdict, and the trial court declared a mistrial. Shortly

thereafter, the case was again tried to a jury. The jury returned a verdict finding Mr. ONeil

guilty of each offense and each firearm specification that was charged in the indictment.

Case No. 2022-P-0030 The trial court held a sentencing hearing where it sentenced Mr. ONeil to an aggregate

prison term of 49 years.

{¶7} Mr. ONeil appealed his convictions and sentences. This court affirmed his

convictions but remanded for resentencing based on the trial court’s errors in imposing

postrelease control. See State v. ONeil, 11th Dist. Portage No. 2008-P-0090, 2009-Ohio-

7000, ¶ 67-69. The Supreme Court of Ohio permitted Mr. ONeil to file a delayed notice

of appeal, see State v. O’Neil, 124 Ohio St.3d 1537, 2010-Ohio-1557, 924 N.E.2d 841,

but subsequently declined jurisdiction. See State v. O’Neil, 126 Ohio St.3d 1544, 2010-

Ohio-3855, 932 N.E.2d 339.

{¶8} On remand, the trial court again imposed an aggregate prison term of 49

years. Mr. ONeil appealed his sentences, and this court affirmed. See State v. ONeil,

11th Dist. Portage No. 2010-P-0041, 2011-Ohio-2202, ¶ 68. Mr. ONeil appealed to the

Supreme Court of Ohio, which declined jurisdiction. See State v. Oneil, 129 Ohio St.3d

1492, 2011-Ohio-5129, 954 N.E.2d 664.

{¶9} In 2015, Mr. ONeil filed a petition for a writ of habeas corpus in the United

States District Court for the Northern District of Ohio (case no. 1:15 CV 960). The court

dismissed his petition as untimely.

{¶10} On March 2, 2021, defense counsel filed an affidavit of disqualification in

the Supreme Court of Ohio seeking to disqualify the trial court judge (case no. 21-AP-

028). Two days later, on March 4, 2021, Mr. ONeil filed a motion for leave to file a motion

for a new trial pursuant to Crim.R. 33 and requested an evidentiary hearing. Mr. ONeil

alleged the existence of newly discovered evidence consisting of an affidavit from Dr. Curt

Case No. 2022-P-0030 Carlson (“Dr. Carlson”) challenging the eyewitness identification evidence presented at

trial.

{¶11} On March 8, 2021, the Chief Justice filed an entry in the trial court stating

that an affidavit of disqualification had been filed. On March 10, 2021, the trial court filed

a judgment entry stating, “The Defendant’s Motion for an Evidentiary Hearing is denied

without hearing.” On April 6, 2021, the Chief Justice filed an entry denying defense

counsel’s affidavit of disqualification.

{¶12} Over one year later, on April 11, 2022, Mr. ONeil filed a motion for a final

appealable order. He alleged that the trial court’s March 10, 2021 judgment entry did not

deny his motion for leave; it was filed while the affidavit of disqualification was pending;

and he was not served with the entry. The state opposed Mr. ONeil’s motion.

{¶13} On June 10, 2022, the trial court filed a judgment entry denying, without a

hearing, Mr. ONeil’s motion for leave to file a motion for a new trial, stating, “Upon review,

this Court finds that the documents submitted by [Mr. ONeil], on their face, do not

demonstrate that [he] was unavoidably prevented from discovering the evidence with the

120-day period prescribed in Crim.R. 33(B).”

{¶14} Mr. ONeil appealed and asserts the following two assignments of error:

{¶15} “[1.] The trial court abused its discretion in overruling appellant’s motion for

leave.

{¶16} “[2.] The trial court abused its discretion in denying appellant’s request for

an evidentiary hearing.”

Case No. 2022-P-0030 Motion for Leave

{¶17} In his first assignment of error, Mr. ONeil contends that the trial court abused

its discretion by denying his motion for leave to file a motion for a new trial.

{¶18} We review a trial court’s ruling on a motion for leave for an abuse of

discretion. See State v. Alexander, 11th Dist. Trumbull No. 2011-T-0120, 2012-Ohio-

4468, ¶ 9. An abuse of discretion is the trial court’s “‘failure to exercise sound,

reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54,

2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.2004).

{¶19} Crim.R. 33(A) provides, in relevant part, that “[a] new trial may be granted

on motion of the defendant for any of the following causes affecting materially the

defendant’s substantial rights: * * * (6) When new evidence material to the defense is

discovered which the defendant could not with reasonable diligence have discovered and

produced at the trial.”

{¶20} Crim.R. 33(B) provides, in relevant part, that “[m]otions 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 * * *. If 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.”

{¶21} As this court has explained, “Crim.R. 33 permits a convicted defendant to

file a motion for a new trial within 120 days after the day of the verdict on grounds of

‘newly discovered evidence.’ However, * * * when a motion based on newly discovered

Case No. 2022-P-0030 evidence is filed more than 120 days after the verdict, the defendant must first file a motion

to seek leave to file a delayed motion.” Alexander at ¶ 14. If the trial court determines

that “the documents in support of the motion on their face do not demonstrate that the

movant was unavoidably prevented from discovering the evidence, it may * * * overrule

the motion [for leave] * * *.” State v. Trimble, 2015-Ohio-942, 30 N.E.3d 222, ¶ 16 (11th

Dist.).

{¶22} “A defendant is ‘unavoidably prevented’ from filing a motion for new trial if

the defendant ‘had no knowledge of the existence of the ground supporting the motion

and could not have learned of that existence within the time prescribed for filing the motion

in the exercise of reasonable diligence.’” Alexander at ¶ 17, quoting State v. Walden, 19

Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984). “Clear and convincing

evidence is that measure or degree of proof which is more than a mere ‘preponderance

of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable

doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief

or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.

469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

{¶23} In this case, the jury issued its verdict in 2008. Therefore, Mr. ONeil

correctly sought leave before filing a motion for a new trial. In an affidavit attached to his

motion for leave, Mr. ONeil averred, in relevant part, that he was represented by

appointed counsel at trial; no expert was hired regarding the eyewitness testimony; he

was not aware of “any new changes in the science surrounding eyewitness testimony”

until “recently”; and he could not afford counsel or expert assistance in the years following

his convictions and sentences.

Case No. 2022-P-0030 {¶24} Mr. ONeil’s affidavit does not provide clear and convincing proof that he was

unavoidably prevented from timely discovering the information in Dr. Carlson’s affidavit.

“A defendant’s failure to locate and call a particular expert witness does not provide

grounds for a delayed motion for a new trial under Crim.R. 33 in the ordinary case.” State

v. Thompson, 2d Dist. Montgomery No. 25016, 2012-Ohio-4862, ¶ 12. “When a

defendant prepares for trial, he and his attorney must research expert witnesses and

make strategic decisions about which ones, if any, to have testify.” Id. Otherwise, “a

convicted defendant perpetually could ferret out new expert witnesses to re-examine the

evidence with the hope of obtaining a different result.” Id.

{¶25} Although Mr. ONeil alleged the existence of “new science,” the record does

not support that conclusion. Some of the studies Dr. Carlson cites in his affidavit had not

been published at the time of Mr. ONeil’s trial. However, Dr. Carlson’s citations to

“foundational research” demonstrate that scientific theories on eyewitness identification

have existed for decades. Similarly, with respect to proper police lineup procedures, Dr.

Carlson primarily relies on a U.S. Department of Justice (“DOJ”) report issued in 1999.

See State v. Chambers, 4th Dist. Adams No. 20CA1125, 2021-Ohio-3388, ¶ 21; State v.

Stein, 5th Dist. Richland No. 13CA51, 2014-Ohio-222, ¶ 27-33 (each rejecting the

appellants’ claims that developments in preexisting scientific theories constituted newly

discovered evidence when the genesis of those theories existed at the time of trial).

“Crim.R. 33(B) does not allow a defendant to wait for further evidence to arise that will

bolster his case.” State v. Berry, 10th Dist. Franklin No. 06AP-803, 2007-Ohio-2244, ¶

39.

Case No. 2022-P-0030 {¶26} In addition, “[t]here is a material difference between being unaware of

certain information and being unavoidably prevented from discovering that information,

even in the exercise of due diligence.” (Emphasis added.) State v. Warwick, 2d Dist.

Champaign No. 01CA33, 2002 WL 1585663, *3 (July 19, 2002). The mere fact that Mr.

ONeil did not know about the scientific theories or the DOJ report does not demonstrate

that he was unavoidably prevented, had he exercised due diligence and some effort, from

discovering them. See id. Crim.R. 33(B) does not permit a defendant “to claim that

evidence was undiscoverable simply because the defense did not undertake efforts to

obtain the evidence sooner.” State v. Anderson, 10th Dist. Franklin No. 12AP-133, 2012-

Ohio-4733, ¶ 14.

{¶27} Although Mr. ONeil alleged that he was financially unable to acquire expert

assistance, there is no indication that he petitioned the court for funds to hire an expert

or that doing so was not an option. Thus, he did not establish that he was unavoidably

prevented from obtaining expert assistance because of his financial status. See State v.

Thornton, 12th Dist. Clermont No. CA2012-09-063, 2013-Ohio-2394, ¶ 26.

{¶28} Finally, Mr. ONeil appears to contend that the legislature’s post-trial

enactment of R.C. 2933.83 constitutes newly discovered evidence that he was

unavoidably prevented from discovering. R.C. 2933.83(B) requires police departments

conducting lineups after the statute’s effective date, i.e., July 6, 2010, to adopt specific

procedures and minimum requirements. However, Crim.R. 33(B) requires “newly

discovered evidence,” not new legal authority. Thus, the legislature’s post-trial enactment

of R.C. 2933.83 did not provide valid grounds for Mr. ONeil’s motion for leave.

Case No. 2022-P-0030 {¶29} In sum, we agree with the trial court that the documents Mr. ONeil submitted

in support of his motion for leave did not, on their face, support the claim that he was

unavoidably prevented from timely discovering the allegedly new evidence. Accordingly,

the trial court did not abuse its discretion in denying his motion for leave.

{¶30} Mr. ONeil’s first assignment of error is without merit.

Evidentiary Hearing

{¶31} In his second assignment of error, Mr. ONeil contends that the trial court

abused its discretion by denying his request for an evidentiary hearing.

{¶32} “‘The decision whether to grant or hold an evidentiary hearing on a

defendant’s request for leave to file a delayed motion for new trial falls within the sound

discretion of the trial court and will not be disturbed on appeal absent an abuse of that

discretion.’” Alexander, supra, at ¶ 15, quoting State v. Peals, 6th Dist. Lucas No. L-10-

1035, 2010-Ohio-5893, ¶ 23.

{¶33} A defendant is “only entitled to a hearing on a motion for leave to file a

motion for a new trial if he submits documents which, on their face, support his claim that

he was unavoidably prevented from timely discovering the evidence at issue.” State v.

McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, 869 N.E.2d 77, ¶ 19 (2d Dist.).

Therefore, “no such hearing is required, and leave may be summarily denied, where

neither the motion nor its supporting affidavits embody prima facie evidence of

unavoidable delay.” Peals at ¶ 23.

{¶34} As explained above, the trial court did not abuse its discretion in denying

Mr. ONeil’s motion for leave. Consequently, the trial court did not abuse its discretion by

failing to hold an evidentiary hearing on that motion.

Case No. 2022-P-0030 {¶35} Mr. ONeil’s second assignment of error is without merit.

{¶36} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas is affirmed.

MATT LYNCH, J.,

EUGENE A. LUCCI, J.,

concur.

Case No. 2022-P-0030