[Cite as State v. Struckman, 2023-Ohio-3582.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220658 TRIAL NO. B-1502231 Plaintiff-Appellee, :
vs. : O P I N I O N.
BUDDY STRUCKMAN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 4, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Buddy Struckman, pro se. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Buddy Struckman appeals the Hamilton County
Common Pleas Court’s judgment denying his Crim.R. 33(B) motion for leave to file a
new-trial motion and his motion for summary judgment. We affirm.
I.
{¶2} Following a jury trial, Struckman was convicted in May 2018 of two
counts of unlawful possession of a dangerous ordnance, specifically an automatic
firearm and suppressor, and sentenced to a seven-year prison term. This court
affirmed his convictions on appeal, holding that there was sufficient evidence
presented that Struckman had exercised dominion and control over the area (a safe in
a closet) where the dangerous ordnances were found and that he would have been
aware of their presence. State v. Struckman, 1st Dist. Hamilton No. C-180287, 2020-
Ohio-1232, appeal not accepted, 159 Ohio St.3d 1446, 2020-Ohio-3712, 149 N.E.3d
523 (“Struckman I”). Struckman unsuccessfully challenged his convictions in
postconviction proceedings in 2019 and 2021. See State v. Struckman, 1st Dist.
Hamilton Nos. C-200069 and C-200210, 2021-Ohio-1043 (“Struckman II”)
(affirming denial of postconviction relief where claims of ineffective assistance of
counsel were barred by res judicata); State v. Struckman, 1st Dist. Hamilton No. C-
210640, 2022-Ohio-2848 (“Struckman III”) (common pleas court lacked jurisdiction
to consider successive postconviction petition where petitioner had not been
unavoidably prevented from discovering the evidence upon which his claims were
based).
{¶3} In October 2022, Struckman filed a “Motion for Leave to Proceed”
seeking leave under Crim.R. 33(B) to file a motion for a new trial based on newly
discovered evidence. In support, Struckman attached the following to his motion for
leave: (1) this court’s opinion in Struckman I; (2) Lucas v. Hamilton Cty. Mun. Court,
S.D.Ohio No. 1:12-cv-138, 2012 U.S. Dist. LEXIS 76744 (Jun. 4, 2012); (3) excerpts
2 OHIO FIRST DISTRICT COURT OF APPEALS
from the transcript of his 2018 felony trial; (4) excerpts from the transcript of his 2017
misdemeanor trial; (5) the affidavit for his arrest; and (6) the exhibit list from his 2018
felony trial.
{¶4} Struckman argues that this evidence demonstrates that he was not the
only person who had access to the house at 622 Maple Street where the dangerous
ordnances were found. Specifically, he points to excerpts from his 2017 misdemeanor
trial for drug offenses that stemmed from items found on a table during the search of
the residence at 622 Maple Street. Struckman, in his 2017 trial, was acquitted of those
charges after the trial court had found that “other people may have had access to the
area where the drugs were found.” Struckman believes that he should have been
acquitted of the felony charges for the same reason even though the drugs were found
in the open living room area of the residence and the dangerous ordnances were found
in a safe in what appeared to be a locked closet. Because he was found guilty of
constructively possessing the dangerous ordnances in his 2018 felony trial, Struckman
argues that his constitutional protections against double jeopardy were violated, and
he was denied a fair trial.
{¶5} When the state did not file a timely response to his motion for leave,
Struckman moved for “summary of judgment,” asking the common pleas court to
grant his motion for leave. The court summarily denied both motions.
II.
{¶6} Bringing forth three assignments of error, Struckman now appeals from
the court’s judgment. In his first and second assignments of error, Struckman
contends that the common pleas court erred by denying his Crim.R. 33(B) motion for
leave and his motion for summary judgment.
{¶7} We review the denial of a Crim.R. 33(B) motion for leave under an
abuse-of-discretion standard. State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991,
205 N.E.3d 513, ¶ 29. Crim.R. 33(A) states: “A new trial may be granted on motion of
3 OHIO FIRST DISTRICT COURT OF APPEALS
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.” Generally, a motion for a new trial based on newly discovered
evidence must be filed within 120 days after the jury rendered its verdict or the trial
court issued its decision if the defendant waived the right to a jury trial. Crim.R. 33(B).
Here, the jury verdict in Struckman’s felony trial was rendered on May 3, 2018.
Therefore, he is beyond the 120-day time period for filing a motion for a new trial.
{¶8} An untimely motion for a new trial based on newly discovered evidence
may be filed if the defendant first establishes by clear and convincing evidence that he
was unavoidably prevented from discovering the evidence within the 120-day period.
Id. A party is “unavoidably prevented” from filing a motion for a new trial if “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.” State v.
McKnight, 2021-Ohio-2673, 176 N.E.3d 802, ¶ 11 (4th Dist.), citing State v. Walden,
19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984).
{¶9} Struckman argues that the evidence he attached to his motion could not
have been discovered during the 120-day time period in the exercise of reasonable
diligence. We disagree. All of the “evidence” attached to Struckman’s motion for leave,
except for this court’s decision in Struckman I, was available to him before or at his
felony trial or within 120 days from the guilty verdict, regardless of whether Struckman
had taken the time to gather that information. With respect to our opinion in
Struckman I, this is not “new evidence.” Although Struckman was unaware that this
court would affirm his convictions, he was aware of all of the facts noted in the opinion
and that he had been convicted of possessing dangerous ordnances and acquitted of
misdemeanor drug charges. Accordingly, he was aware of the grounds of his motion
4 OHIO FIRST DISTRICT COURT OF APPEALS
for a new trial within the 120-time period and was not unavoidably prevented from
filing a timely new-trial motion. See State v. Risden, 2d Dist. Montgomery No. 25234,
2013-Ohio-1823, ¶ 13.
{¶10} Additionally, the common pleas court did not err in overruling
Struckman’s motion for summary judgment, which was essentially a request that the
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[Cite as State v. Struckman, 2023-Ohio-3582.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220658 TRIAL NO. B-1502231 Plaintiff-Appellee, :
vs. : O P I N I O N.
BUDDY STRUCKMAN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 4, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Buddy Struckman, pro se. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Buddy Struckman appeals the Hamilton County
Common Pleas Court’s judgment denying his Crim.R. 33(B) motion for leave to file a
new-trial motion and his motion for summary judgment. We affirm.
I.
{¶2} Following a jury trial, Struckman was convicted in May 2018 of two
counts of unlawful possession of a dangerous ordnance, specifically an automatic
firearm and suppressor, and sentenced to a seven-year prison term. This court
affirmed his convictions on appeal, holding that there was sufficient evidence
presented that Struckman had exercised dominion and control over the area (a safe in
a closet) where the dangerous ordnances were found and that he would have been
aware of their presence. State v. Struckman, 1st Dist. Hamilton No. C-180287, 2020-
Ohio-1232, appeal not accepted, 159 Ohio St.3d 1446, 2020-Ohio-3712, 149 N.E.3d
523 (“Struckman I”). Struckman unsuccessfully challenged his convictions in
postconviction proceedings in 2019 and 2021. See State v. Struckman, 1st Dist.
Hamilton Nos. C-200069 and C-200210, 2021-Ohio-1043 (“Struckman II”)
(affirming denial of postconviction relief where claims of ineffective assistance of
counsel were barred by res judicata); State v. Struckman, 1st Dist. Hamilton No. C-
210640, 2022-Ohio-2848 (“Struckman III”) (common pleas court lacked jurisdiction
to consider successive postconviction petition where petitioner had not been
unavoidably prevented from discovering the evidence upon which his claims were
based).
{¶3} In October 2022, Struckman filed a “Motion for Leave to Proceed”
seeking leave under Crim.R. 33(B) to file a motion for a new trial based on newly
discovered evidence. In support, Struckman attached the following to his motion for
leave: (1) this court’s opinion in Struckman I; (2) Lucas v. Hamilton Cty. Mun. Court,
S.D.Ohio No. 1:12-cv-138, 2012 U.S. Dist. LEXIS 76744 (Jun. 4, 2012); (3) excerpts
2 OHIO FIRST DISTRICT COURT OF APPEALS
from the transcript of his 2018 felony trial; (4) excerpts from the transcript of his 2017
misdemeanor trial; (5) the affidavit for his arrest; and (6) the exhibit list from his 2018
felony trial.
{¶4} Struckman argues that this evidence demonstrates that he was not the
only person who had access to the house at 622 Maple Street where the dangerous
ordnances were found. Specifically, he points to excerpts from his 2017 misdemeanor
trial for drug offenses that stemmed from items found on a table during the search of
the residence at 622 Maple Street. Struckman, in his 2017 trial, was acquitted of those
charges after the trial court had found that “other people may have had access to the
area where the drugs were found.” Struckman believes that he should have been
acquitted of the felony charges for the same reason even though the drugs were found
in the open living room area of the residence and the dangerous ordnances were found
in a safe in what appeared to be a locked closet. Because he was found guilty of
constructively possessing the dangerous ordnances in his 2018 felony trial, Struckman
argues that his constitutional protections against double jeopardy were violated, and
he was denied a fair trial.
{¶5} When the state did not file a timely response to his motion for leave,
Struckman moved for “summary of judgment,” asking the common pleas court to
grant his motion for leave. The court summarily denied both motions.
II.
{¶6} Bringing forth three assignments of error, Struckman now appeals from
the court’s judgment. In his first and second assignments of error, Struckman
contends that the common pleas court erred by denying his Crim.R. 33(B) motion for
leave and his motion for summary judgment.
{¶7} We review the denial of a Crim.R. 33(B) motion for leave under an
abuse-of-discretion standard. State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991,
205 N.E.3d 513, ¶ 29. Crim.R. 33(A) states: “A new trial may be granted on motion of
3 OHIO FIRST DISTRICT COURT OF APPEALS
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.” Generally, a motion for a new trial based on newly discovered
evidence must be filed within 120 days after the jury rendered its verdict or the trial
court issued its decision if the defendant waived the right to a jury trial. Crim.R. 33(B).
Here, the jury verdict in Struckman’s felony trial was rendered on May 3, 2018.
Therefore, he is beyond the 120-day time period for filing a motion for a new trial.
{¶8} An untimely motion for a new trial based on newly discovered evidence
may be filed if the defendant first establishes by clear and convincing evidence that he
was unavoidably prevented from discovering the evidence within the 120-day period.
Id. A party is “unavoidably prevented” from filing a motion for a new trial if “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.” State v.
McKnight, 2021-Ohio-2673, 176 N.E.3d 802, ¶ 11 (4th Dist.), citing State v. Walden,
19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984).
{¶9} Struckman argues that the evidence he attached to his motion could not
have been discovered during the 120-day time period in the exercise of reasonable
diligence. We disagree. All of the “evidence” attached to Struckman’s motion for leave,
except for this court’s decision in Struckman I, was available to him before or at his
felony trial or within 120 days from the guilty verdict, regardless of whether Struckman
had taken the time to gather that information. With respect to our opinion in
Struckman I, this is not “new evidence.” Although Struckman was unaware that this
court would affirm his convictions, he was aware of all of the facts noted in the opinion
and that he had been convicted of possessing dangerous ordnances and acquitted of
misdemeanor drug charges. Accordingly, he was aware of the grounds of his motion
4 OHIO FIRST DISTRICT COURT OF APPEALS
for a new trial within the 120-time period and was not unavoidably prevented from
filing a timely new-trial motion. See State v. Risden, 2d Dist. Montgomery No. 25234,
2013-Ohio-1823, ¶ 13.
{¶10} Additionally, the common pleas court did not err in overruling
Struckman’s motion for summary judgment, which was essentially a request that the
court rule on his Crim.R. 33(B) motion for leave. Although Struckman argues that the
common pleas court should not have considered the state’s untimely response to his
Crim.R. 33(B) motion for leave, regardless of whether the court did, the court properly
denied Struckman’s motion for leave as Struckman failed to demonstrate that he was
unavoidably prevented from timely filing a new-trial motion. Accordingly, the first and
second assignments of error are overruled.
III.
{¶11} In his third assignment of error, Struckman contends that he should be
granted a new trial because the state violated “U.S. Constitutional Amendments X,
XIV, FAIR TRIAL, DUE PROCESS, DOUBLE JEOPARDY, [and] EQUAL
PROTECTIONS.” We do not address this assignment of error because it goes to the
merits of Struckman’s new-trial motion, which the common pleas court did not
consider. And we are unable to reach the merits of the new-trial motion as well. See
State v. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 41 (holding that
“until a trial court grants leave to file a motion for a new trial, the [untimely filed]
motion for a new trial is not properly before the court.”).
IV.
{¶12} In conclusion, because Struckman failed to show that he was
unavoidably prevented from discovering the grounds underlying his new-trial motion
within the requisite time frame, we affirm the common pleas court’s judgment.
Judgment affirmed.
WINKLER, P.J., and KINSLEY, J., concur.
5 OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its own entry on the date of the release of this opinion.