State v. Abraham

[Cite as State v. Abraham, 2026-Ohio-1561.]


                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


STATE OF OHIO,                                    :

                Plaintiff- Appellee,              :
                                                             No. 115553
        v.                                        :

RALIEGH ABRAHAM,                                  :

                Defendant-Appellant. :
                _______________________________________

                                   JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED AND REMANDED
                RELEASED AND JOURNALIZED: April 30, 2026


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                            Case No. CR-22-674860-A


                                              Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Owen Knapp, Assistant Prosecuting
                Attorney, for appellee.

                Raliegh Abraham, pro se.


MICHELLE J. SHEEHAN, A.J.:

                 Defendant-appellant Raliegh Abraham (“Abraham”) appeals from the

trial court’s order denying his untimely motion for new trial. Since Abraham’s

motion for new trial was filed prior to the court ruling on his motion for leave to file
a motion for new trial (“motion for leave”) that had been filed the same day, the trial

court properly denied his motion for new trial. As such, we affirm the trial court’s

decision and remand this case to the trial court with instructions to consider

Abraham’s pending motion for leave.

         I. Relevant Procedural History

              At the conclusion of a bench trial in January 2024, the trial court found

Abraham guilty of two counts of rape in violation of R.C. 2907.02(A)(1)(c), felonies

of the first degree. Sentencing was held two months later wherein the court imposed

an aggregate term of three years to a maximum of four years and six months in

prison.

              Abraham appealed his convictions, alleging that they were against the

manifest weight of the evidence. This court overruled Abraham’s sole assignment

of error. State v. Abraham, 2024-Ohio-5600, ¶ 58-59 (8th Dist.). His subsequent

application to reopen his appeal was also denied.                State v. Abraham,

2025-Ohio-1446, ¶ 20 (8th Dist.).

              On March 17, 2025, Abraham filed a petition to vacate or set aside his

judgment of conviction or sentence, alleging that he was denied effective assistance

of counsel. Abraham’s petition was denied by the trial court.

              On August 11, 2025 Abraham filed a motion for new trial simultaneous

with a motion for leave. Almost a week later, the court denied his motion for new

trial.
             It is the trial court’s denial of his motion for new trial from which

Abraham now appeals, raising the following assignment of error for our review:

      The trial court abused its discretion in failing to grant [Abraham’s]
      motion for leave to file a motion for new trial or for failing to hold a
      hearing on [Abraham’s] motion for leave to file a motion for new trial.

      II. Law and Analysis

             In his sole assignment of error, Abraham argues that the trial court

erred by failing to grant his motion for leave. However, the trial court did not rule

on Abraham’s motion for leave. Rather, it properly denied his motion for new trial

that had been filed without first obtaining leave from the trial court. Abraham’s

motion for leave remains pending. For this reason, we overrule Abraham’s sole

assignment of error, affirm the trial court’s judgment denying Abraham’s untimely

motion for new trial, and remand the case to the trial court to consider Abraham’s

pending motion for leave.

      1. Applicable law

             Crim.R. 33 provides the framework by which a criminal defendant may

move the trial court for a new trial. One of the grounds by which a new trial may be

granted is if “new evidence material to the defense is discovered which the defendant

could not with reasonable diligence have discovered and produced at trial.”

Crim.R. 33(A)(6). Crim.R. 33(B) provides that an application for a new trial must

be made within 14 days after the verdict was rendered. If the motion is made on the

account of newly discovered evidence, the motion for a new trial must be made

within 120 days after the day upon which the verdict was rendered. Crim.R. 33(B).
             “Accordingly, a defendant who seeks a new trial outside the 120-day

period must comply with Crim.R. 33(B)’s ‘two-step’ process for filing an untimely

motion.” State v. McAlpin, 2026-Ohio-148, ¶ 16, citing State v. Hatton, 2022-Ohio-

3991, ¶ 29. The first step in this process requires the defendant to obtain an order

from the court finding that the defendant “was unavoidably prevented from

discovering the evidence within the one hundred twenty day period.” Crim.R. 33(B);

McAlpin at ¶ 16.        The Ohio Supreme Court has consistently interpreted

Crim.R. 33(B) “to require a defendant to obtain leave of court before filing an

untimely new-trial motion.” McAlpin at ¶ 17.

               If the trial court determines that the defendant has demonstrated he

was unavoidably prevented from discovering the evidence on which he or she now

relies, the second step is for the defendant to file a motion for new trial within seven

days of the court’s order finding that the defendant was unavoidably prevented from

discovering the evidence within the 120-day period. Crim.R. 33(B); Hatton at ¶ 28.

“In short, an untimely motion for new trial based on newly discovered evidence may

be filed only after the trial court grants leave to file it.” (Emphasis added.) McAlpin

at ¶ 18, citing Hatton at ¶ 28.

      2. Analysis

             As a preliminary matter, we note Abraham filed his motion for new trial

and motion for leave on the same day and outside the 120-day time period set forth

in Crim.R. 33(B). In short, Abraham had not yet obtained leave from the trial court

when he filed his motion for new trial, i.e., the trial court had not determined
whether Abraham was unavoidably prevented from discovering the new evidence

within the 120-day time period. The trial court denied his motion for new trial but

did not address Abraham’s motion for leave.

               The Ohio Supreme Court has held that “[w]hen a defendant files an

untimely new-trial motion without first obtaining leave of court, he or she fails to

comply with the necessary procedural steps set forth in Crim.R. 33(B)” and

therefore the “defendant’s failure to obtain leave to file an untimely motion for a new

trial is a sufficient reason to affirm a trial court’s denial of a motion for new trial.”

McAlpin at ¶ 23. In McAlpin, the Court recognized that the trial court properly

denied the defendant’s untimely motion for new trial since it was filed prior to

obtaining leave from the trial court. As a result, the Court held that the trial court

properly denied the defendant’s motion for new trial since it had been filed without

first obtaining leave of court and remanded the case to the trial court with

instructions to address the defendant’s pending motion for leave. Id. at ¶ 25.

               Here, the trial court properly denied Abraham’s motion for new trial

that had been filed prior to obtaining leave from the trial court, in violation of the

procedure set forth in Crim.R. 33(B). As such, we affirm the trial court’s denial of

Abraham’s motion for new trial and remand the case to the trial court to address

Abraham’s pending motion for leave.

               Judgment affirmed; case remanded.

      It is ordered that appellee recover of appellant 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

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.


_______________________________________
MICHELLE J. SHEEHAN, ADMINISTRATIVE JUDGE

ANITA LASTER MAYS, J., and
DEENA R. CALABRESE, J., CONCUR