Opinion
CASE NO. 2019-T-0001
12-09-2019
STATE OF OHIO, Plaintiff-Appellee, v. CHARLES LEMONS, III, Defendant-Appellant.
Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, Ohio 44481-1092 (For Plaintiff-Appellee). Charles Lemons, III, pro se, A563-098, Richland Correctional Institution, 1001 Olivesburg Road, P.O. Box 8107, Mansfield, Ohio 44905 (Defendant-Appellant).
OPINION
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2007 CR 00806. Judgment: Affirmed. Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, Ohio 44481-1092 (For Plaintiff-Appellee). Charles Lemons, III, pro se, A563-098, Richland Correctional Institution, 1001 Olivesburg Road, P.O. Box 8107, Mansfield, Ohio 44905 (Defendant-Appellant). THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Charles L. Lemons, III, appeals the denial of his motion for leave to file a motion for a new trial. We affirm.
{¶2} In 2009, appellant was found guilty of two counts of rape, attempted rape, kidnapping, felonious assault, and five repeat violent offender specifications. He was sentenced to 58 years in prison.
{¶3} In November 2015, appellant filed an application for DNA testing. Attached to this application is a one-page police report.
{¶4} In December 2018, appellant moved for leave to file a motion for new trial based upon newly discovered evidence, that being the same police report attached to his 2015 application. The motion was denied.
{¶5} On appeal, appellant raises four assignments of error:
{¶6} "[1.] The trial court erred, to the prejudice of appellant by not conducting a voir dire hearing on the issues of allied offenses.
{¶7} "[2.] Prosecutorial misconduct, withholding exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 88.
{¶8} "[3.] The trial court erred by denying defendant-appellant's access to D.N.A. testing of evidence.
{¶9} "[4.] The trial court erred by implicitly denying defendant-appellant's request for D.N.A. testing under R.C. 2953.84 without explaining it's [sic] reasoning."
{¶10} The assignments will be addressed together.
{¶11} "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 * * *. 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." Crim.R. 33(B).
{¶12} It is unclear when appellant obtained the police report. However, his best-case scenario is that it was more than 120 days after verdict and that he was unavoidably prevented from discovering it before then. However, assuming that to be the case, his motion for leave was untimely.
{¶13} A motion for leave to file a motion for new trial outside of 120 days must be filed within a reasonable time after discovering the new evidence. State v. West, 4th Dist. Scioto No. 17CA3810, 2018-Ohio-1784, ¶ 10; State v. Seal, 2017-Ohio-116, 75 N.E.3d 1035 (4th Dist.); State v. Bentley, 2016-Ohio-3290, 66 N.E.3d 180, ¶ 15 (11th Dist.); State v. Elersic, 11th Dist. Lake No. 2007-L-104, 2008-Ohio-2121, ¶ 20; State v. Griffith, 11th Dist. Trumbull No. 2005-T-0038, 2006-Ohio-2935, ¶ 15; State v. Stansberry, 8th Dist. Cuyahoga No. 71004,1997 WL 626063; Crim.R. 1(B).
{¶14} Appellant's newly discovered evidence is the police report that he had in November 2015 at the very latest. Yet, his motion for leave was not filed until December 2018, slightly more than three years later.
{¶15} His conclusory statement that the police report was recently discovered belies the record.
{¶16} Appellant's motion for leave was untimely. The judgment is affirmed. CYNTHIA WESTCOTT RICE, J., MATT LYNCH, J., concur.