State v. Mock
| Decision Date | 09 July 2020 |
| Docket Number | No. 108837,108837 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. TYRONE MOCK, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Tasha Forchione, Assistant Prosecuting Attorney, for appellee.
Susan J. Moran, for appellant.
{¶ 1} Defendant-appellant Tyrone Mock ("appellant") brings the instant appeal challenging the trial court's denial of his motion for leave to file a delayed motion for new trial. Appellant argues that the trial court erred by finding that he was not unavoidably delayed in discovering previously undisclosed jury questions and answers and evidence of Brady violations.1 After a thorough review of the record and law, this court affirms the decision of the trial court.
{¶ 2} Appellant was convicted on a number of counts relating to a check fraud ring he had cultivated and was sentenced to a prison term totaling 13 years.2 Appellant appealed his conviction and sentence, which were affirmed by this court. Appellant then appealed this court's decision to the Supreme Court of Ohio, which declined to accept jurisdiction. See State v. Mock, 06/06/2018 Case Announcements #2, 2018-Ohio-2155, 99 N.E.3d 426.
{¶ 3} In pursuing postconviction remedies, appellant's prior appellate counsel, David N. Patterson ("Attorney Patterson"), conducted an investigation of the facts surrounding appellant's criminal case. As part of his investigation, Attorney Patterson reviewed the detective's affidavit that was submitted to the common pleas court in support of a search warrant to install and monitor a GPS tracking device on appellant's vehicle. From this review, Attorney Patterson determined that the statements of a confidential informant were the sole material factors in establishing probable cause to support the issuance of the search warrant. The detective's affidavit for the GPS tracking warrant noted that the confidentialinformant signed a proffer letter and positively identified appellant from a photo lineup.
{¶ 4} Attorney Patterson then contacted the confidential informant's attorney, Mitchell J. Yelsky ("Attorney Yelsky"). From this conversation, Attorney Patterson determined that the confidential informant had not signed a proffer letter nor had she identified appellant from a photo lineup. Attorney Patterson surmised that the detectives and the state intentionally withheld relevant and material evidence from appellant and falsified facts and events in the affidavits for the search warrant in order to mislead the court.
{¶ 5} Attorney Patterson also conducted phone interviews with two women associated with appellant, Tammy Jordan and Brandon Fambro, in March and July 2018, respectively. Ms. Jordan provided an affidavit to Attorney Patterson, and Ms. Fambro made statements to Attorney Patterson that appellant claims constitute evidence that the phone records used in his criminal case could not have had a relationship to appellant's address.
{¶ 6} In addition, in 2018, Attorney Patterson's legal assistant, Linda Head ("Ms. Head"), reviewed the entire physical record of appellant's case on file with the clerk of courts. During this review, Ms. Head located four notes containing jury questions to the trial court and the corresponding answers. After this discovery, Ms. Head was taken ill and hospitalized with copies of the notes still in her possession. She was unable to advise appellant's counsel of her discovery until she returned to work in August 2018. In reviewing the transcript of the proceedings in appellant'scriminal case, she noted that it did not contain any memorialization of the jury questions and the court's answers.
{¶ 7} As a result of the discovery of the notes containing the jury questions and the court's answers and the possible evidence relating to the phone records and the probable cause for the search warrant, appellant sought to file a motion for new trial. On December 14, 2018, appellant filed (1) delayed motion for a new trial pursuant to Crim.R. 33(A)(1), (2), and (6) based on newly discovered evidence; and (2) motion for order finding he was unavoidably prevented from filing a motion for a new trial within the fourteen days after the verdict was rendered or within the 120 days after the verdict was rendered and motion for leave to file a delayed motion for new trial pursuant to Crim.R. 33(A)(1), (2), and (6) based on newly discovered evidence. In support of his motions, appellant submitted affidavits of Ms. Head, Attorney Patterson, and Ms. Jordan along with his own affidavit.
{¶ 8} The state filed a brief in response to appellant's motion that included an affidavit of Attorney Yelsky in which he averred that several paragraphs of Attorney Patterson's affidavit were materially false and denied saying "anything remotely close" to what Attorney Patterson stated.
{¶ 9} On May 21, 2019, following a status conference, the trial court requested supplemental briefing to address the issue of whether there was an unavoidable delay in obtaining the alleged new evidence to be used in support of appellant's motion for new trial. Appellant and the state subsequently submitted additional briefing on this issue.
{¶ 10} On June 24, 2019, the trial court denied appellant's motion for leave to file a motion for a new trial, finding that appellant did not demonstrate by clear and convincing evidence that he was unavoidably prevented from discovering the new evidence and filing his motion within the time provided by Crim.R. 33(B). With regard to the notes containing the jury questions and the court's answers, the trial court specifically found that the record of appellant's case had been available to the parties since November 7, 2016, and that, even though appellant himself was incarcerated, appellant was represented by counsel throughout his appeal, who had access to the record.
{¶ 11} The trial court held that appellant had not shown that he or his counsel exercised reasonable diligence in investigating the record from the time it was available until sometime in 2018 when Ms. Head conducted her review. Further, the trial court noted that appellant was aware of Ms. Jordan and Ms. Fambro's relevance to the case as their names had come up during the June 2016 suppression hearing, and appellant did not identify any impediments that would have prevented him from obtaining affidavits or statements from either of the women prior to 2018. The trial court therefore found that appellant failed to demonstrate that he was unavoidably prevented from discovering evidence challenging the search warrants or the phone records.
{¶ 12} Appellant filed the instant appeal on July 23, 2019, raising the following assignments of error for our review:
{¶ 13} This court reviews the denial of a motion for leave to file a delayed motion for new trial for an abuse of discretion. State v. Dues, 8th Dist. Cuyahoga No. 105388, 2017-Ohio-6983, ¶ 11. An abuse of discretion is not simply an error of law or judgment, but implies the court's attitude is unreasonable, arbitrary, or unconscionable. State v. Yates, 8th Dist. Cuyahoga No. 96664, 2011-Ohio-4962, ¶ 5.
{¶ 14} Under Crim.R. 33(A), a new trial may be granted on motion of the defendant for any of the following causes materially affecting his or her substantial rights:
{¶ 15} A motion for new trial based upon grounds other than newly discovered evidence must be filed within 14 days after the verdict was rendered. Crim.R. 33(B). A motion for new trial based upon newly discovered evidence must be filed within 120 days after a verdict is rendered. Id. A party who fails to file a motion for new trial within the prescribed time frame must seek leave from the trial court to file a delayed motion for new trial. State v. Hale, 8th Dist. Cuyahoga No. 107782, 2019-Ohio-1890, ¶ 9. The trial court may grant leave to file a delayed motion for new trial if the movant shows, by clear and convincing evidence, that he was unavoidably prevented from filing the motion for new trial or discovering the evidence and he sought leave within a reasonable time. Id. at ¶ 9-10. If a significant delay occurs, the trial court must ascertain whether the delay was reasonable under the circumstances or whether the movant provided an adequate explanation as to why the delay occurred. Id.
{¶ 16} The jury rendered its verdict on August 19, 2016, and appellant did not file his motion for leave to file a delayed motion for new trial until December 14, 2018. As this was well beyond the fourteen or 120-day time limits of Crim.R. 33(B), appellant's motion for leave must have established by clear and convincing evidence that he was unavoidably prevented from filing his motion or discovering the new evidence and that the motion for leave was filed within a reasonable time.
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