Natalie Hurst, Associate Member, University of Cincinnati Law Review
Ohio Criminal Rule 33 (“Crim. R. 33” or “Rule 33”) sets the guidelines for when and how a criminal defendant can file a motion for a new trial. Because the guarantee to a fair trial is found in the Ohio Constitution and the U.S. Constitution, a criminal defendant in Ohio may file a motion for a new trial if his or her substantial right to a fair trial has been materially affected in some way. One basis for a new trial is when a defendant discovers new evidence that he or she was unable to discover before that could potentially have changed the outcome of the trial. Though defendants have a right to file a motion for new trial on the basis of newly discovered evidence, Ohio courts have imposed various conflicting filing deadlines that prevent defendants from having their motions heard on the merits. The Ohio Supreme Court (“the Court”) should resolve the jurisdictional split and put an end to the uncertainty these varying interpretations cause for criminal defendants seeking new trials based on newly discovered evidence.
A. The Rule on its Face
Crim. R. 33(A) allows a criminal defendant to file a motion for new trial in six specific situations. The last context to justify a motion for a new trial is set forth in 33(A)(6): “when new evidence is discovered that the defendant could not have discovered with reasonable diligence and produced at trial.” Although every other 33(A) motion must be filed within fourteen days of the verdict, there is a different filing requirement for newly discovered evidence under Crim. R. 33(A)(6). Crim. R. 33(B) provides:
Motions 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, or the decision of the court where trial by jury has been waived. 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.
When new evidence has been discovered under Crim. R. 33(A)(6), a motion for new trial may be filed within 120 days after the verdict. However, a defendant is not entirely out of luck after the 120-day period. A defendant may ask the court’s permission to file a motion for new trial, also known as a motion for leave. The motion for leave must give clear and convincing proof that the defendant was unavoidably prevented from discovering the evidence. If the court finds the defendant has met this burden, the defendant may then file a motion for new trial within seven days of that finding. This exception for newly discovered evidence reflects the reality that defendants are unlikely to find new evidence within 120 days after their trial, as the discovery of new evidence depends on a variety of time-consuming variables—such as new witnesses coming forward, a witness later recanting his or her testimony, etc.
Thus, Crim. R. 33(B) provides just two deadlines for motions for new trials based on newly discovered evidence. On the one hand, a defendant may file a motion for a new trial anytime within 120 days of the verdict. On the other hand, after the 120 days, the defendant must first file a motion for leave to file a motion for a new trial. If the court rules in response that the defendant was unavoidably prevented from discovering the evidence within the 120-day period, the defendant may then file a motion for a new trial within seven days after the court’s order. Crim. R. 33(B) does not set a filing deadline for how soon after discovering new evidence a defendant must file a motion for leave. There is no language requiring a defendant to file a motion for leave within a specific or “reasonable time” after discovering new evidence. The rule only requires a final motion for new trial to be filed seven days after a judge has ruled that a defendant was unavoidably prevented from discovering new evidence. Despite what some judicial interpretations indicate, the rule does not say “once a defendant has discovered new evidence, the defendant must file for leave within a reasonable time.”
B. The Rule in Practice
Though the text of Rule 33 imposes no deadline for a motion for leave based on newly discovered evidence, Ohio courts have read in requirements relating to timeliness and diligence. Various courts interpret this statute differently. For example, some courts require a defendant to file a motion for leave to file a motion for new trial within a reasonable time after discovering the evidence (though they provide no clear guidance for how much time is reasonable), but some jurisdictions do not speak to this issue at all.
In the initial years following the enactment of Crim. R. 33 in 1973, courts did not impose this requirement for defendants to file a motion for leave within a reasonable time after discovering new evidence. Just four years after the rule’s enactment, a 1977 concurring opinion from the Eighth District Court of Appeals mentioned that “Criminal Rule 33 does not place a time restriction upon when motions applying for a court order finding unavoidable prevention may be made.” As late as 1993, the Fourth District reaffirmed that “Crim.R.33(B) does not provide a time limit for filing a motion for leave” to file a delayed motion for new trial after the discovery of new evidence outside of the 120-day window.
The jurisdictional split began in 1997, when some courts began to require defendants to file a motion for leave to file a motion for new trial within a reasonable time after discovering new evidence. Courts did not cite any explanation or precedent for the new “reasonable time” element. For example, in the 1997 case State v. Nicholson, the Eighth District overturned a trial court order that had granted a motion for leave. Although the defendant allegedly discovered new evidence (a witness recantation) within a year after his conviction, the defendant did not file his motion for new trial for another three years. The court found no explanation for this “additional delay” between discovering the new evidence and filing. Based on the lack of explanation for the delay, the court overturned the motion because of the defendant’s perceived lack of diligence.
In the same year, the Eighth District expanded its new “reasonable time” precedent found in Nicholson. In State v. Stansberry, the appellate court held that if there was a delay in filing a motion for leave after discovering the evidence, then “the trial court must determine if the delay was reasonable under the circumstances or that the defendant has adequately explained the reason for the delay.” The court hypothesized that if there was not a reasonable time standard, defendants would wait to file a motion for leave so that witnesses would no longer be available or evidence would be degraded in some way, thus limiting the state’s ability to retry the case.
Following the Eighth District’s new precedent, appellate courts throughout Ohio have found that “most courts” have the discretion to rule on a motion for leave based on whether the defendant filed the motion for leave to file a motion for new trial “within a reasonable time after discovering the evidence.” The result of this “reasonable time” inquiry leads to varying results from district to district. For example, in State v. Tubbs, the Second District determined that a defendant’s six-month delay in filing a Rule 33 motion after discovering new evidence was unreasonable. Compare Tubbs to State v. Bentley, where the Eleventh District determined that the defendant’s five-year delay was reasonable. There are numerous examples of the Ohio appellate courts widely interpreting the court-imposed “reasonable time” standard, such as the following: the Fifth District held that a ten-month delay to be unreasonable, the Sixth District found that a 13-month delay is unreasonable, the Seventh District determined a 9-year delay to be unreasonable, the Eighth District found a four-year delay unreasonable, and the Twelfth District found a five-year delay unreasonable. Courts have made various determinations as to timing that is unreasonable, but no court has defined what amount of time exactly is reasonable or what amount of time is “too much” and, thus, unreasonable. Moreover, courts indicate that defendants may overcome this timing requirement if there is an “adequate explanation” for the “reasonable delay,” but the courts have not defined what makes up an “adequate explanation.”
As it currently stands, the court-imposed “reasonable time” standard for filing Rule 33(B) motions is arbitrary and unfairly prejudices criminal defendants seeking their right to at least have their motion for new trial heard on the merits. The courts’ varying timeliness standards force defendants to choose between either (1) filing their motion for leave quickly and more “timely” without due diligence or a thorough investigation into the new evidence or (2) diligently investigating the merits of the new evidence and possibly facing procedural roadblocks. However, as demonstrated by the courts’ varying determinations of what is an “unreasonable” delay, both defendants who file quickly and defendants who take time to investigate before filing may still be denied leave based on a lack of “reasonable” time between the discovery of new evidence and filing. Moreover, regardless of when a defendant files for leave to file a Crim. R. 33 motion, the State almost always opposes it on grounds that there was an “unreasonable delay.”
To understand this issue, consider this hypothetical: a criminal defendant has been convicted for an assault he claims he did not commit. The only evidence against him at trial was the testimony of the victim identifying him as the perpetrator (there is no physical or DNA evidence). More than 120 days after the verdict is delivered, a stranger, whom the defendant had no way of knowing, contacts the defendant. The stranger provides information that he was present when the victim was assaulted, so the stranger knows the defendant does not match the description of the actual perpetrator. The stranger gives an affidavit swearing that the defendant was not the perpetrator of the crime. In this scenario, the defendant has just discovered new evidence that could be the basis for a new trial under Rule 33, so the “reasonable time” to file clock has begun ticking.
The defendant hires counsel and gives them the affidavit. Counsel has an obligation to investigate a case fully before filing to ensure that claim is meritorious and not frivolous, so counsel spends time locating and interviewing the stranger and confirming his claims. For a variety of reasons, it could take months or even years to fully investigate a claim (e.g., difficulty locating witnesses and obtaining statements, delays in locating documents, etc.). After diligently investigating the claim and preparing the filing, counsel files a motion for leave to file a motion for new trial—explaining that the defendant was unavoidably prevented from discovering the stranger’s evidence within the 120-day window. Depending on the trial court’s determination, the defendant may have waited “too long” to file this motion after the stranger contacted him. Courts have different interpretations of how much time is reasonable or unreasonable. So, even though the defendant in this hypothetical did his due diligence in investigating the claim, he could still be punished by not having his claim heard on the merits—simply because trial courts are allowed to impose arbitrary “reasonable time” requirements on these filings that are not found in the rule.
Furthermore, the reasoning for court-imposed “reasonable time” standards is meritless. Though the Stansberry court identified the reasoning behind this court-imposed standard as preventing unfair prejudice to the State’s ability to retry cases, the true prejudice is towards the defendant. The rationale in Stansberry defies common sense—it requires believing that a criminal defendant will sit on new evidence for the small chance that the evidence will degrade (likely a witness will die or their memory will fade) before filing, just to make it harder for the State to retry the defendant. Criminal defendants likely do not intentionally stay in prison longer than necessary when they have potentially liberating information.
Moreover, this court-imposed deadline disadvantages criminal defendants who seek to file a motion for new trial on the basis of newly discovered evidence. Because defendants do not have concrete guidelines for the timing of their filings for new trial, they are punished if they take “too much” time to investigate and diligently prepare their filings. Defendants are left guessing and hoping that they file in a “diligent” and “timely” way, though it is ultimately left to the discretion of the trial judge—even though Rule 33 does not require this determination. The effect is that criminal defendants can be denied the right to at least a hearing on the merits of their newly discovered evidence based on “reasonable time” filing requirements not found in the rule.
The Ohio Supreme Court can and should address this issue. To date, the Court has refused to hear the appeals that have raised this issue. However, lower courts continue to dismiss defendants’ claims for new trials on the court-imposed procedural grounds that vary from district to district. For the sake of uniformity and fairness, the Court should provide guidance. The Court could do this in two ways: (1) by overturning the various court-imposed “reasonable time” standards or (2) by creating a bright-line rule in the form of a time limit to file a Crim. R. 33(B) motion after discovering new evidence.
Under the first solution, the Court can recognize that Crim. R. 33(B) imposes no deadline for when a defendant must file a motion for leaveafter discovering new evidence. This would not limit trial courts’ broad discretion in determining the merits of a defendant’s claim—it would simply put the courts’ discretion into the scope intended by Rule 33. Rule 33 intends for a judge to hold a hearing on the motion for leave to determine if the defendant meets the “unavoidably prevented” standard, not to dismiss the motion for timing issues. This solution would no longer prevent a defendant’s otherwise meritorious motion for leave from being dismissed on court-imposed procedural grounds.
Under the second solution, the Court could resolve the various jurisdictional interpretations of the court-imposed “reasonable time” standard in favor of a uniform standard. The Court could provide a “statute of limitations”-like deadline for when a defendant must file a Rule 33 motion for leave after discovering new evidence. This solution removes uncertainty by providing defendants with bright line guidance. For example, if the Court imposed a one-year deadline, defendants and their counsel would know to wrap up their diligent investigations and file for leave before one year had passed.
Ohio courts will continue to impose arbitrary “reasonable time” requirements on defendants who file Crim. R. 33 motions for new trial based on newly discovered evidence. Defendants will continue to be disadvantaged by this practice. For the sake of uniformity and fairness, the Ohio Supreme Court should settle this issue either by staying true to the text of Rule 33, which does not require a filing deadline, or by setting a clear deadline.
 Ohio Crim. R. 33 (2020).
 Ohio Const. Art. I §5; U.S. Const. amend. VI.
 Ohio Crim. R. 33(A)(6) (2020).
 Ohio Crim. R. 33(A)(1)-(6) (2020). See also, the examples discussed in McCoy, 2003-Ohio-1802 at ¶11.
 Ohio Crim. R. 33(A)(6) (2020).
 Ohio Crim. R. 33(B) (2020). There is an exception for filing outside of the 14-day window under any of the reasons given in 33(A)(1)-(5) if the defendant was deemed to have been unavoidably prevented from filing within the 14-day window for some reason.
 Ohio Crim. R. 33(B) (2020).
 See e.g., Maitreya Badami, Why Do Exonerations Take So Long?, Santa Clara School of Law Blog (Nov. 7, 2016), https://law.scu.edu/experiential/northern-california-innocence-project/why-do-exonerations-take-so-long/. This article discusses how exonerations take an average of 11 years after conviction due to a variety of time-consuming variables.
 E.g., State v. Tubbs, 2016-Ohio-842, ¶17 (Ohio Ct. App. 2016).
 See e.g., State v. Thomas, 93 N.E.3d 227, 229 (Ohio Ct. App. 2017) (First District decision citing to decisions from the Second, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and Twelfth Districts).
 E.g., State v. Kiraly, 381 N.E.2d 649, 660-61 (Ohio Ct. App. 1977) (Krenzler, J., concurring); State v. Pinkerman, 623 N.E.2d 643, 645 (Ohio Ct. App. 1993).
 See e.g., State v. Nicholson, 1997 Ohio App. LEXIS 1751, *9-10 (Ohio Ct. App. 1997).
 Id. at *11-12.
 Id. at *9.
 State v. Armengau, 2017-Ohio-197, ¶16 (Ohio Ct. App. 2017).
 State v. Bentley, N.E.3d 180, 185 (Ohio Ct. App. 2016).
 State v. Hill, 2020-Ohio-4050, ¶¶24-25 (Ohio Ct. App. 2020).
 State v. Clyde, 2019-Ohio-302, ¶20 (Ohio Ct. App. 2019).
 State v. Parks, 2018-Ohio-3975, ¶14 (Ohio Ct. App. 2018).
 State v. Kimbrough, 2005-Ohio-1320, ¶18 (Ohio Ct. App. 2005).
 State v. Barnes, 1999 Ohio App. LEXIS 6421, *8 (Ohio Ct. App. 1999).
 See e.g., Stansberry, 1997 Ohio App. LEXIS 4561 at *9.
 Ohio R. of Prof. Conduct 3.1 (2020).