[Cite as State v. Rodriguez-Baron, 2012-Ohio-5360.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

ARMANDO RODRIGUEZ-BARON, 

 DEFENDANT-APPELLANT. 

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 CASE NO. 12-MA-44 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of 

Common Pleas of Mahoning County, 

Ohio 

Case No. 05CR490B 

JUDGMENT: Affirmed 

APPEARANCES: 

 For Plaintiff-Appellee 

For Plaintiff-Appellee 

 Paul Gains 

Paul Gains 

Prosecutor 

Ralph M. Rivera 

Assistant Prosecutor 

21 W. Boardman St., 6th Floor 

Youngstown, Ohio 44503 

  For Defendant-Appellant 

 For Defendant-Appellant 

For Defendant-Appellant 

 Armando C. Rodriguez-Baron, Pro-se 

Armando C. Rodriguez-Baron, Pro-se 

#530-175 

P.O. Box 8107 

Mansfield, Ohio 44901 


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JUDGES: 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

 Dated: November 16, 2012 

 Dated: November 16, 2012 

 Dated: November 16, 2012 

 Dated: November 16, 2012 

 Dated: November 16, 2012 

 Dated: November 16, 2012 

 Dated: November 16, 2012 

  Dated: November 16, 2012 

 Dated: November 16, 2012 

Dated: November 16, 2012 


[Cite as State v. Rodriguez-Baron, 2012-Ohio-5360.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Armando Rodriguez-Baron, appeals from a 

Mahoning County Common Pleas Court judgment denying his motion for leave to 

file a motion for new trial. 

{¶2} In appellant’s direct appeal, we set out the facts as follows: 

On May 17, 2005, the Alcohol, Tobacco, and Firearms Task 

Force executed a search warrant at Daniel Morales's home in 

Youngstown. The task force broke down the door. In the house, 

they found Morales, his wife, and their three children. They also 

found appellant and co-defendant Frank Deltoro in a bedroom. 

Under the stairs in the basement, officers located a duffel 

bag with a 35-pound brick of marijuana. The bag had the name 

“Deltoro” on it. They also found a black trash bag containing 24 

baggies each containing approximately one pound of marijuana. 

Officers also found a scale and more baggies nearby. Throughout 

the rest of the house, officers located more marijuana in smaller 

quantities hidden in various places. 

According to Morales's testimony, appellant, Deltoro, and 

two other men arrived at his house on May 13, 2005. In the trunk of 

their car, the men had clothes and two bricks of marijuana. The 

men unloaded the marijuana and took it to the basement of 

Morales's house. Appellant and Deltoro spent the night there. The 

next day all of the men, including appellant, went into Morales's 

basement and separated, weighed, and bagged one of the bricks of 

marijuana. They did not get around to separating the other brick of 

marijuana. 

On May 26, 2005, a Mahoning County grand jury indicted 

appellant, Deltoro, and Morales on one count of possession of 

marijuana, a second-degree felony in violation of R.C. 

2925.11(A)(C)(3)(f), and one count of trafficking in marijuana, a 
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first-degree felony in violation of R.C. 2925.03(A)(2)(C)(3)(f). 

Appellant and Deltoro filed a motion requesting that the trial 

court compel the state to provide them with the identity of its 

confidential informant (CI). This led to the first appeal in this case 

on the state's appeal of the trial court's order that it was required to 

disclose the CI's identity to appellant and Deltoro. See State v. 

Deltoro, 165 Ohio App.3d 750, 848 N.E.2d 558, 2006-Ohio-1280. 

The parties eventually entered into an agreement. In exchange for 

not having to reveal the CI's identity, the state agreed to drop the 

trafficking charge and prosecute appellant and Deltoro only on the 

possession charge. In a June 29, 2006 judgment entry, the court 

sustained the state's motion to dismiss the trafficking in marijuana 

charge. 

* * * 

The trial proceeded to a joint jury trial solely on the 

possession of marijuana count. Morales pleaded guilty to 

conspiring to traffic marijuana and testified against appellant and 

Deltoro. The jury found both appellant and Deltoro guilty. The trial 

court subsequently sentenced appellant to eight years in prison. 

State v. Rodriguez-Baron, 7th Dist. No. 07-MA-86, 2008-Ohio-4816, ¶2-6, 8. 

This court affirmed appellant’s conviction. 

{¶3} On January 17, 2010, appellant filed a pro se motion for leave to 

file a motion for new trial. Appellant attached the affidavit of co-defendant 

Deltoro. In the affidavit, Deltoro claimed responsibility for the crimes and averred 

that appellant had no involvement. The trial court denied appellant’s motion 

without a hearing. 

{¶4} Appellant filed a timely notice of appeal on February 15, 2012. 

{¶5} Appellant, still acting pro se, now raises a single assignment of 

error, which states: 

 THE TRIAL COURT COMMITTED REVERSIBLE ERROR 
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IN DENYING APPELLANT’S MOTION FOR FINDING THAT HE 

WAS UNAVOIDABLY PREVENTED FROM DISCOVERING NEW 

EVIDENCE WITHIN 120 DAYS OF VERDICT WHEN A RECENT 

AFFIDAVIT WAS PREPARED BY APPELLANT’S CODEFENDANT JUST WEEKS PRIOR TO THE FILING OF THE 

INSTANT MOTION. 

{¶6} Appellant argues that as soon as he received Deltoro’s affidavit, he 

motioned the trial court for a hearing. At the minimum, appellant contends the 

trial court should have held a hearing on his motion. He claims that he was 

convicted based only on the testimony of his other co-defendant, Morales. 

Therefore, he claims that Deltoro’s affidavit at least warranted a hearing. 

{¶7} A trial court's decision to grant or deny a new trial on grounds of 

newly discovered evidence falls within the court's sound discretion. State v. 

Hawkins, 66 Ohio St.3d 339, 350, 612 N.E.2d 1227 (1993). Likewise, it is within 

the trial court’s discretion to determine whether or not it is necessary to hold an 

evidentiary hearing on a new trial motion. State v. Green, 7th Dist. No. 05-MA116, 2006-Ohio-3097, ¶11. Therefore, we will not reverse such a decision 

absent an abuse of discretion. Abuse of discretion connotes more than an error 

of law or judgment; it implies the trial court's judgment was arbitrary, 

unreasonable, or unconscionable. State v. Adams, 62 Ohio St. 151, 157, 56 

N.E.2d 654 (1980). 

{¶8} In this case, the trial court denied appellant leave to file a delayed 

motion for new trial. Thus, we must examine the timeliness of appellant's motion. 

{¶9} Crim.R. 33(B) addresses timeliness when the basis of a new trial 

motion is newly discovered evidence: 

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 
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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. 

{¶10} Because appellant's motion was filed well outside the 120-day 

period, he was required to obtain leave of court to file his motion for new trial. 

{¶11} Leave of court must be granted before the merits of the motion are 

reached. State v. Lordi, 149 Ohio App.3d 627, 2002-Ohio-5517, 778 N.E.2d 605, 

¶25 (7th Dist.). The moving party must prove unavoidable delay by clear and 

convincing evidence in order to obtain leave. Id. at ¶26; Crim.R. 33(B). 

Unavoidable delay results when the party had no knowledge of the existence of 

the ground supporting the motion for a new trial and could not have learned of 

the existence of that ground within the required time in the exercise of 

reasonable diligence. Id. citing, State v. Walden, 19 Ohio App.3d 141, 146, 1483 

N.E.2d 859 (1984). The requirement of clear and convincing evidence puts the 

burden on the defendant to prove he was unavoidably prevented from 

discovering the evidence in a timely manner. State v. Fortson, 8th Dist. No. 

82545, 2003-Ohio-5387, ¶12. 

{¶12} This is not the case of a newly discovered witness whom the 

defendant learned of after trial. In this case, appellant and Deltoro were codefendants. They were together before and during the ATF raid on Morales’s 

house, they were indicted together, and they stood trial together. And because 

appellant and Deltoro were together during the raid at Morales’s house, appellant 

had access to all of the same information and observations about the drugs and 

the raid as Deltoro did. Therefore, it stands to reason that appellant was not 

unavoidably delayed in discovering any evidence that Deltoro knew. Thus, we 

cannot conclude that the trial court abused its discretion in denying appellant’s 

motion for leave to file a motion for new trial. 

{¶13} Accordingly, appellant’s sole assignment of error is without merit. 

{¶14} For the reasons stated above, the trial court’s judgment is hereby 
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affirmed. 

Vukovich, J., concurs. 

Waite, P.J., concurs.