[Cite as State v. Jackson,
2024-Ohio-2261.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112944
v. :
EMMANUEL JACKSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 13, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-16-608044-C
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Sarah E. Hutnik, Assistant Prosecuting
Attorney, for appellee.
Allison F. Hibbard, for appellant.
MARY J. BOYLE, J.:
Defendant-appellant, Emmanuel Jackson (“Jackson”), appeals the
trial court’s decision denying him leave to file a motion for new trial without holding
a hearing. For the reasons set forth below, we affirm the trial court’s decision.
I. Facts and Procedural History
This is Jackson’s third appeal before this court. The underlying case
involves a car-jacking robbery that occurred in July 2016. Following a jury trial in
April 2017, Jackson was found guilty of aggravated robbery, robbery, grand theft,
and kidnapping, as well as the notice of prior conviction and repeat violent offender
specifications. The trial court sentenced Jackson to 16 years in prison on May 23,
2017. This court affirmed his convictions and sentence in State v. Jackson, 8th Dist.
Cuyahoga No. 105919, 2018-Ohio-1633, ¶ 29 (“Jackson I”), finding that although
the state improperly conditioned the plea agreements of Jackson’s codefendants on
their agreement not to testify at Jackson’s trial, Jackson was not prejudiced because,
among other things, there remained “no reasonable doubt about Jackson’s guilt.”
In Jackson I, this court found that the evidence presented at trial
overwhelmingly established Jackson’s participation in the crime, noting that
Jackson and his codefendants were apprehended shortly after the robbery based on
the victim’s descriptions of the perpetrators. Id. at ¶ 28. The victim identified all
three perpetrators in a cold stand. Further, the victim’s iPhone was recovered on
the ground ten feet away from Jackson, and Jackson’s sandals were located a few
feet from the victim’s minivan. Finally, in trial, the victim identified the tattoo on
Jackson’s right arm that he observed when Jackson reached through the van
window and grabbed him. Id. at ¶ 28.
In November 2018, Jackson moved for leave to file a motion for new
trial arguing that he had obtained new evidence, specifically an unsolicited affidavit
from the codefendant, in which the codefendant denied knowing Jackson and
averred that Jackson was not involved in the robbery from which codefendant was
convicted. Jackson argued that the affidavit cured the deficiency that this court
found in Jackson I. The trial court denied the motion without hearing and this court
affirmed, finding that Jackson’s motion for leave, on its face, did not demonstrate
by clear and convincing evidence that he was unavoidably prevented from timely
discovering the evidence at issue; therefore, the trial court did not abuse its
discretion in not holding a hearing on the motion. State v. Jackson, 8th Dist.
Cuyahoga No. 108241, 2019-Ohio-4893, ¶ 4 (“Jackson II”).
In this case, Jackson filed another motion for leave to file a motion
for new trial alleging that he never had the opportunity to review his jury verdict
forms until recently and just discovered that the jury, instead of the judge, found
him guilty of the repeat violent offender specifications in contravention of
R.C. 2941.149(B). The trial court again denied the motion, without hearing, finding
that Jackson “has not demonstrated by clear and convincing evidence that he was
unavoidably prevented from discovering the purported new evidence.” (Journal
Entry, Opinion and order, May 31, 2023).
Jackson appeals this ruling, raising one assignment of error for our
review:
Assignment of Error I: The trial court abused its discretion in
denying defendant’s motion for leave to file motion for new trial
without holding a hearing.
II. Law and Analysis
A. Standard of Review
This court reviews the denial of leave to file an untimely motion for
new trial for an abuse of discretion. State v. Sutton, 2016-Ohio-7612,
73 N.E.3d 981,
¶ 13 (8th Dist.). An abuse of discretion occurs when a court exercises its judgment
in an unwarranted way regarding a matter over which it has discretionary authority.
Johnson v. Abdullah,
166 Ohio St.3d 427,
2021-Ohio-3304,
187 N.E.3d 463, ¶ 35.
B. Motion for a New Trial
Under his sole assignment of error, Jackson argues that the trial court
abused its discretion when it denied his motion for leave arguing that he was
unavoidably prevented from filing his motion in a timely fashion because he just
recently obtained the jury verdict forms. We find Jackson’s argument unpersuasive.
Crim.R. 33(A)(5), states that “[a] new trial may be granted on motion
of the defendant for any of the following causes affecting materially his substantial
rights: … [an](5) Error of law occurring at the trial[.]” This motion must “be filed
within fourteen days after the verdict was rendered … unless it is made to appear
by clear and convincing proof that the defendant was unavoidably prevented from
filing his motion for a new trial[.]” Crim.R. 33(B).
Because the appellant missed the 14-day deadline, the appellant was
required to seek leave of court before filing a delayed motion for a new trial. To
obtain leave, the appellant must establish by clear and convincing proof that he was
unavoidably prevented from filing his motion for a new trial within the designated
time. “[A] party is unavoidably prevented from filing a motion for 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. Armengau, 10th Dist. Franklin No. 16AP-355, 2017-Ohio-197, ¶ 23, quoting
State v. Walden,
19 Ohio App.3d 141, 145-46,
483 N.E.2d 859 (10th Dist.1984).
The defendant bears the burden of showing by clear and convincing
proof that he was unavoidably prevented from filing his motion within the time
prescribed, and he must make such showing with more than a mere allegation that
he was unavoidably prevented from discovering the evidence he seeks to introduce
in support for a new trial. State v. Bridges, 8th Dist. Cuyahoga Nos. 103634 and
104506, 2016-Ohio-7298, ¶ 20.
Finally, a defendant is only entitled to a hearing on his motion for
leave if he submits “documents that 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.).
Although a defendant may file his motion for a new trial along with his request for
leave, “the trial court may not consider the merits of the motion for a new trial until
it makes a finding of unavoidable delay. … If the defendant submits documents
that on their face support his claim that he was unavoidably prevented from timely
discovering the evidence, the trial court must hold a hearing to determine whether
there was unavoidable delay.” State v. Brown, 8th Dist. Cuyahoga No. 95253, 2011-
Ohio-1080, ¶ 14, citing State v. Stevens, 2d Dist. Montgomery Nos. 23236 and
23315,
2010-Ohio-556, ¶ 11; State v. Jackson, 8th Dist. Cuyahoga No. 108241, 2019-
Ohio-4893, ¶ 8-12.
On July 17, 2022, Jackson filed his second motion for leave to file an
untimely motion for new trial pursuant to Crim.R. 33(A)(5), arguing that an error of
law occurred at trial that he failed to discover because he did not have access to the
jury verdict forms until just recently. The trial court denied Jackson’s motion for
leave, without hearing, finding that Jackson was not unavoidably prevented from
timely discovering the evidence. The trial court explained that Jackson was in court
when the verdicts were read and that the court had a lengthy conversation with
Jackson, prior to trial, regarding the ramifications of the having weapons while
under disability count, the notice of prior conviction, and the repeat violent offender
specifications being decided by the jury. Jackson chose to stipulate to his prior
conviction but wanted the jury to decide the having weapons while under disability
count and repeat violent offender specification, which was against the advice of
counsel. (Journal Entry, Opinion and Order, May 31, 2023).
After reviewing the record, we cannot say that the trial court exercised
its judgment in an unwarranted way regarding a matter over which it has
discretionary authority. The documents, on its face, do not support Jackson’s claim
that he was unavoidably prevented from discovering the issue within the allotted
timeframe. As the trial court explained, Jackson made the decision to have the
repeat violent offender specification decided by the jury and was present in the
courtroom when the jury verdicts were read. Therefore, we find that the trial court
did not abuse its discretion when it denied Jackson’s motion for leave without a
hearing.
Accordingly, Jackson’s sole assignment of error is overruled.
III. Conclusion
The trial court did not abuse its discretion when it denied Jackson’s
motion for leave to file an untimely motion for new trial without hearing because the
motion on its face does not support Jackson’s claim that he was unavoidably
prevented from discovering the evidence within the prescribed time.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________
MARY J. BOYLE, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
EILEEN T. GALLAGHER, J., CONCUR
