[Cite as State v. Clement, 2012-Ohio-3818.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 97930

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs. 

 REGINALD CLEMENT

 DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-518986 

BEFORE: Stewart, J., Blackmon, A.J., and E. Gallagher, J. 

RELEASED AND JOURNALIZED: August 23, 2012 
ATTORNEY FOR APPELLANT

Paul Mancino, Jr. 

75 Public Square, Suite 1016 

Cleveland OH 44113 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Mary H. McGrath 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 8th Floor 

Cleveland, OH 44113 
MELODY J. STEWART, J.:

{¶1} Defendant-appellant Reginald Clement appeals from an order that denied his 

motion for leave to file a joint motion for a new trial and postconviction relief. The court 

held that neither motion was timely: Clement did not seek leave to file a motion for a 

new trial within 120 days from his conviction as required by Civ.R. 33, nor did he seek 

postconviction relief within 180 days after the transcript was filed in his direct appeal. 

The court also found that Clement failed to make any showing that he had been 

unavoidably prevented from filing either motion within the allotted time. Clement’s sole 

assignment of error contests the court’s ruling. 

 I 

{¶2} In February 2010, a jury found Clement guilty of aggravated murder, murder, 

aggravated robbery, kidnapping, and having a weapon while under disability. We 

affirmed the conviction on direct appeal. See State v. Clement, 8th Dist. No. 94869, 

2011-Ohio-1555. We likewise denied Clement’s motion to reopen his appeal. See State 

v. Clement, 8th Dist. No. 94869, 2011-Ohio-1555, reopening disallowed Motion No. 

445587 (Feb. 12, 2012). 

{¶3} On July 8, 2011, Clement filed a motion for leave to file a motion for a new 

trial or, in the alternative, a petition for postconviction relief. Both motions were 

premised on the affidavit of codefendant Demetrius Williams, who claimed that he had 
been pressured by the prosecuting attorney to implicate Clement in the murder in 

exchange for not receiving the death penalty. Williams claimed that “I do now state that 

Reginald Clement had nothing to do with the murder * * *.” 

 II 

{¶4} Crim.R. 33(B) requires a motion for a new trial to be made within 14 days 

after a verdict is rendered. If a motion for a new trial is made on grounds of newly 

discovered evidence, the motion must be filed within 120 days after the day the verdict is 

rendered. Id. A defendant may file a motion for a new trial outside the 120-day 

deadline only by leave of court and only 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[.]” Id.

{¶5} Clement’s motion for leave to file a motion for a new trial was concededly 

outside the 120-day window established by Crim.R. 33(B). He thus had to establish by 

clear and convincing proof that he was unavoidably prevented from discovering 

Williams’s recantation as a predicate for obtaining leave. The motion failed to offer 

proof of any kind to show why Clement had been unavoidably prevented from obtaining 

Williams’s affidavit. 

{¶6} Clement maintains that the 120-day window for obtaining leave did not begin 

to run until he obtained the affidavit. This argument is meritless — Crim.R. 33(B) 

makes clear that the time for seeking a new trial begins to run “within one hundred twenty 

days after the day upon which the verdict was rendered[.]” If that time has expired, the 
movant can seek leave to file a motion for a new trial but must first establish to the 

court’s satisfaction reasons showing why the motion was unavoidably delayed. Clement 

may not have obtained Williams’s affidavit until May 6, 2011, but this says nothing about 

why it took Clement so long to obtain it or what caused the delay. It will not do to say, 

as Clement does in this appeal, that “Defendant certainly was unavoidably prevented from 

filing his motion at an earlier time because defendant did not have the affidavit from 

Demetrius Williams.” See Appellant’s Brief at 6. Crim.R. 33(B) requires an affirmative 

showing of the reasons justifying the delay. Clement offered none. The court did not 

abuse its discretion by finding that he failed to establish by clear and convincing evidence 

his entitlement to leave to file a motion for a new trial. 

 III 

{¶7} A petition for postconviction relief that claims a violation of a constitutional 

right must be filed no later than 180 days after the date on which the trial transcript is 

filed in the court of appeals in the direct appeal of the judgment of conviction. R.C. 

2953.21(A)(2). This time limitation is jurisdictional. State v. Johns, 8th Dist. No. 

93226, 2010-Ohio-162, ¶ 8. 

{¶8} An exception to the time limit exists if (1) it can be shown both that petitioner 

was unavoidably prevented from discovering the facts relied on in the claim for relief or 

that the United States Supreme Court recognized a new federal or state right that applies 

retroactively to persons in the petitioner’s situation, and the petition asserts a claim based 

on that right; and (2) there is clear and convincing evidence that but for the constitutional 
error at trial, no reasonable trier of fact would have found the petitioner guilty of the 

offense. R.C. 2953.23(A)(1). 

{¶9} The transcript in Clement’s direct appeal was filed on May 3, 2010. He filed 

the petition for postconviction relief on July 11, 2011. More than 180 days elapsed from 

the time his trial transcript was filed on direct appeal to the date of the petition for 

postconviction relief, so Clement’s motion needed to demonstrate that he was 

“unavoidably prevented from discovering the facts relied on in the claim for relief.” 

{¶10} For the same reasons stated in our discussion of the motion for a new trial, 

the court did not err by finding that Clement failed to establish cause for filing his petition 

for postconviction relief outside the time limits established by R.C. 2953.23(A). 

Clement offered no basis of any kind to explain why he was unavoidably prevented from 

filing his petition for postconviction relief within 180 days after the trial transcript had 

been filed on direct appeal. The court thus had no jurisdiction to entertain the petition 

for postconviction relief. 

{¶11} Judgment affirmed. 

It is ordered that appellee recover of appellant its 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 Cuyahoga 

County Court of Common Pleas to carry this judgment into execution. 

The defendant’s conviction having been affirmed, any bail pending appeal is terminated. 

Case remanded to the trial court for execution of sentence. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

MELODY J. STEWART, JUDGE 

PATRICIA ANN BLACKMON, A.J., and 

EILEEN A. GALLAGHER, J., CONCUR