Crim.R. 33(B) Requires Leave Before an Untimely New-Trial Motion; Failure to Obtain Leave Alone Supports Denial

I. Introduction

Case: State v. McAlpin, Slip Opinion No. 2026-Ohio-148 (Supreme Court of Ohio, Jan. 21, 2026).
Parties: The State of Ohio (appellee) and Joseph McAlpin (appellant).
Posture: Appeal from the Eighth District Court of Appeals (Cuyahoga County), which affirmed a trial court’s denial of McAlpin’s August 2019 motion for a new trial.

McAlpin—sentenced to death for two murders committed during a robbery—filed a motion for new trial in August 2019 under Crim.R. 33(A)(6) based on “newly discovered evidence,” but did so outside Crim.R. 33(B)’s 120-day deadline and without first obtaining leave of court. While that motion remained pending, he later filed (1) a February 2020 motion for leave to file a new-trial motion and (2) an April 2020 “supplemental” new-trial motion. The trial court denied only the August 2019 motion, without expressly ruling on the February 2020 motion for leave or the April 2020 motion.

The central issues before the Supreme Court of Ohio were procedural: whether a trial court errs by denying an untimely Crim.R. 33 new-trial motion while a motion for leave is pending, and whether an appellate court may treat a trial court’s denial of a new-trial motion as an “implicit” denial of a motion for leave.

II. Summary of the Opinion

The Supreme Court of Ohio affirmed the Eighth District’s judgment upholding denial of the August 2019 new-trial motion, but on different grounds. The court held that Crim.R. 33(B) requires a defendant to obtain leave before filing an untimely new-trial motion based on newly discovered evidence; failing to do so is, by itself, a sufficient basis to affirm denial. The court further concluded that McAlpin’s February 2020 motion for leave was directed to his later April 2020 “supplemental/refiled” new-trial motion—not to the August 2019 motion at issue on appeal—so McAlpin never sought leave for the August 2019 filing.

Importantly, although the August 2019 denial stands, the court remanded to the trial court with instructions to rule on McAlpin’s still-pending February 2020 motion for leave and to determine whether he proved by clear and convincing evidence that he was “unavoidably prevented” from discovering the evidence within Crim.R. 33(B)’s 120-day period.

III. Analysis

A. Precedents Cited

  • State v. Hatton, 2022-Ohio-3991
    The court relied on Hatton for two key propositions: (1) Crim.R. 33(B) imposes a “two-step process” for untimely motions based on newly discovered evidence, and (2) the trial court may not consider the merits of the proposed new-trial motion until it grants leave. In McAlpin, this framing supported the court’s decision to treat the absence of leave as dispositive for the August 2019 motion.
  • State v. LaMar, 2002-Ohio-2128 and State v. Hawkins, 66 Ohio St.3d 339 (1993)
    These cases supplied the standard of review for rulings on new-trial motions (abuse of discretion). While the ultimate holding in McAlpin turned on a procedural rule, the court anchored its review framework in these precedents.
  • State v. McNeal, 2022-Ohio-2703
    Cited for applying the abuse-of-discretion standard to rulings on motions for leave to file untimely new-trial motions, reinforcing that “leave” determinations are typically discretionary—though still bounded by law.
  • State v. White, 2008-Ohio-1623 and Johnson v. Abdullah, 2021-Ohio-3304
    White provided the definition of “abuse of discretion.” Johnson supplied a limiting principle: courts have no discretion to commit legal error, particularly where a decision conflicts with the plain language of a rule or statute. This pairing framed the court’s approach to Crim.R. 33(B) as a mandatory procedural gate, not a flexible preference.
  • State v. Miller, 2023-Ohio-3448 (Kennedy, C.J., concurring)
    Quoted to emphasize that when more than 120 days have passed since the verdict, the defendant “must first seek an order from the court allowing the delayed filing.” The concurrence’s formulation became doctrinally useful in McAlpin to reinforce the sequencing requirement.
  • State v. Grad, 2024-Ohio-5710 and State v. Bethel, 2022-Ohio-783
    These cases underscored that the new-trial motion is not “properly before the court” until leave is granted (Bethel) and that the defendant faces a “higher bar” at the merits stage after clearing leave (Grad). McAlpin uses these authorities to stress the jurisdictional-like function of leave in the Crim.R. 33(B) structure (even if framed as procedural propriety rather than subject-matter jurisdiction).
  • State v. Norman, 2005-Ohio-5087 (10th Dist.)
    This is the opinion’s most explicit “rule statement” authority: “A 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.” The Supreme Court adopted this principle to resolve the appeal without reaching the merits of the newly discovered evidence claim.
  • State v. McAlpin, 2022-Ohio-1567
    Cited for the case’s underlying history (affirmance of convictions and death sentence on direct appeal), clarifying that the present proceeding concerns collateral post-verdict motions rather than direct review.
  • State ex rel. McAlpin v. Corrigan, case No. 2021-0615; 2021-Ohio-2307
    The mandamus episode contextualized procedural confusion: McAlpin sought a ruling on his motion for leave, but the response and dismissal were tied to the trial court’s denial of the August 2019 new-trial motion. The Supreme Court’s remand instruction in McAlpin effectively corrects the practical consequence of that history by requiring the trial court to address the still-pending leave motion.

B. Legal Reasoning

  1. Crim.R. 33(B) creates a mandatory sequencing requirement (“leave first”).
    The opinion treats Crim.R. 33(B) as imposing a procedural precondition: after 120 days, a defendant may proceed only by first obtaining a court order (leave) upon clear and convincing proof of unavoidable prevention. Only then may the defendant file the substantive new-trial motion within seven days. This structure matters because it limits what a trial court may consider when confronted with an untimely new-trial motion.
  2. The court resolved the appeal on procedural propriety, not evidentiary merit.
    The Supreme Court expressly declined to discuss the substance of the newly discovered evidence because the dispositive defect was failure to comply with Crim.R. 33(B)’s process for the August 2019 motion. This is a strong reaffirmation that Crim.R. 33(B) compliance is not merely technical; it is outcome-determinative.
  3. Record-based interpretation: the February 2020 leave motion targeted the April 2020 “supplemental/refiled” motion.
    The court read McAlpin’s own language (“simultaneously filing a supplemental motion”) and his later filing describing leave to “refile” and then having “supplemented and refiled” in April 2020 as confirming the object of the leave request. Therefore, no leave request existed for the August 2019 motion—making its denial straightforward under Crim.R. 33(B).
  4. Even under McAlpin’s alternative framing, denial was still proper.
    The opinion adds a belt-and-suspenders rationale: even if the February 2020 motion for leave were construed as relating to the August 2019 motion, the August motion was still filed without first obtaining leave, contrary to Crim.R. 33(B). That defect alone supports affirmance.
  5. Remand protects the integrity of the two-step process going forward.
    By remanding for a ruling on the pending leave motion, the court preserves the procedural sequence for the April 2020 motion: the trial court must first decide unavoidable prevention (clear and convincing evidence) and only then, if leave is granted, can the merits of the new-trial request be addressed.

C. Impact

1. Procedural clarity and stricter enforcement of Crim.R. 33(B).
The opinion strengthens a bright-line message for postconviction litigants: an untimely Crim.R. 33(A)(6) motion is not properly filed until leave is granted. This encourages disciplined motion practice and gives trial courts a clear basis to deny (or appellate courts to affirm denial of) untimely new-trial motions filed without prior leave, without reaching the merits.

2. Appellate review may affirm on different grounds where the record shows noncompliance.
Although the Eighth District relied on “implicit denial” reasoning, the Supreme Court affirmed on a different, narrower ground (failure to obtain leave for the motion under review). This signals that litigants cannot rely on procedural ambiguity (or the order in which motions were later filed) to cure an originally unauthorized filing.

3. Practical consequence: unresolved leave motions must be addressed.
The remand instruction emphasizes that when a leave motion remains pending, trial courts should rule on it explicitly. Even though the Supreme Court did not adopt McAlpin’s proposed rule about always ruling on leave first “regardless of filing order,” the disposition still nudges courts toward clear docket management—especially in capital cases where collateral litigation is complex and prolonged.

4. Litigation strategy in capital and serious felony cases.
Defendants and counsel should treat “leave” as the central pleading in delayed Crim.R. 33 practice. The leave motion should be drafted to (a) identify the specific new-trial motion it authorizes, (b) establish unavoidable prevention with record-ready evidence, and (c) avoid ambiguous “supplemental/refiled” sequencing that could create appeal-limiting confusion about which filing is properly before the court.

IV. Complex Concepts Simplified

Crim.R. 33(A)(6) (new trial based on newly discovered evidence)
A rule allowing a defendant to request a new trial when evidence is discovered after trial that could materially affect the outcome.
Crim.R. 33(B) (timing and “leave” for delayed motions)
A strict timing rule: ordinarily, a newly-discovered-evidence new-trial motion must be filed within 120 days of the verdict. After that, the defendant must first obtain the court’s permission (“leave”) by proving—clearly and convincingly—that the defendant was “unavoidably prevented” from discovering the evidence earlier. Only after leave is granted may the new-trial motion be filed (within seven days).
“Unavoidably prevented”
Not mere difficulty or delay. It means the defendant could not have discovered the evidence within the 120 days even with reasonable diligence.
“Clear and convincing evidence”
A demanding standard of proof—more than “more likely than not,” less than “beyond a reasonable doubt.” It requires a high degree of certainty.
“Two-step process”
Step 1: win leave by proving unavoidable prevention. Step 2: only then litigate the new-trial motion’s merits.
“Affirmed on different grounds”
An appellate court (here, the Supreme Court) can uphold the result reached below even if it disagrees with the lower court’s reasoning, so long as a legally correct basis supports the outcome.

V. Conclusion

State v. McAlpin reinforces a procedural rule with decisive consequences: under Crim.R. 33(B), a defendant must obtain leave before filing an untimely motion for new trial based on newly discovered evidence, and failure to obtain such leave is sufficient to uphold denial of the motion—without reaching the evidentiary merits. At the same time, the court’s remand instruction underscores that pending leave requests must still be addressed so that properly presented delayed new-trial claims (if any) can proceed through Crim.R. 33(B)’s required two-step framework.