Background
A Hamilton County jury convicted Kirmarey Ellington in 2017 of aggravated burglary, two aggravated robberies, gun specifications, and having a weapon while under a disability arising from a home invasion. Identity was the principal issue at trial, and three victims identified Ellington. The First District previously affirmed his convictions.
Eight years after trial, Ellington moved for a new trial based on purportedly newly discovered evidence. He alleged that police began investigating the burglary based on a rumor attributed to “Dontez Hollis’s little brother,” whose identity the state supposedly suppressed. Ellington asserted that he did not learn the person’s name until January 2025 through a friend’s affidavit.
The Court’s Holding
The First District affirmed the denial of Ellington’s motion. A defendant seeking a new trial based on newly discovered evidence ordinarily must file within 120 days of the verdict. To proceed later, the defendant must first obtain an order granting leave upon clear and convincing proof that he was unavoidably prevented from discovering the evidence within that period.
Ellington did not obtain leave before filing his untimely new-trial motion. His assertion within the motion that he had been unavoidably prevented from discovering the evidence did not satisfy the mandatory two-step procedure. Because that procedural failure alone supported denial, the court did not reach his remaining arguments concerning the merits.
Key Takeaways
- An untimely Crim.R. 33(B) new-trial motion is not properly before the trial court unless leave is obtained first.
- Raising unavoidable prevention inside the new-trial motion does not substitute for a prior motion for leave.
- After leave is granted, the defendant must file the new-trial motion within seven days of the leave order.
Why It Matters
The decision applies Ohio’s required sequencing for delayed new-trial motions: seek leave first, then file the merits motion if leave is granted. It also confirms that appellate courts may affirm on that procedural ground without deciding whether the asserted evidence was truly new, material, or likely to change the trial result.