Background
Charles F. Pulley was indicted on February 4, 2021, on two counts of murder, two counts of endangering children, and one count each of felonious assault and involuntary manslaughter. The charges arose from the death of six-week-old A.G., who sustained injuries while Pulley babysat her on August 19 and 20, 2020. Pulley was dating the child’s mother but was not her father. Following a May 2022 jury trial, Pulley was convicted on all charges. After merging offenses, the trial court imposed an aggregate sentence of 18 years to life for murder and endangering children. The Second District affirmed his convictions on direct appeal in State v. Pulley, 2023-Ohio-3277.
On August 6, 2025, Pulley moved under Crim.R. 33(B) for leave to file an untimely motion for a new trial based on prosecutorial misconduct under Crim.R. 33(A)(2). He alleged that the lead prosecutor had been placed on leave for possible criminal activity while Pulley’s case was pending and was indicted in July 2022. Pulley maintained that he could not have learned of the potential charges until the indictment was publicized and thereafter worked to obtain information about their materiality. He supported his motion with an affidavit describing efforts to obtain the prosecutor’s personnel file and office policies concerning work while on leave, but did not file a proposed new-trial motion with his request for leave.
The State opposed the motion, arguing that the evidence’s relevance to Pulley’s convictions was unclear and unsupported. It asserted that no charges were filed against former assistant prosecuting attorney Amos until July 2022, when he resigned, and that nothing improper or illegal had occurred before then. Pulley’s reply argued that he had been unavoidably prevented from discovering the supporting evidence within the applicable deadline, suggesting reliance on the newly discovered evidence provision in Crim.R. 33(A)(6), and emphasized that the only issue was whether he could file an untimely motion. On December 18, 2025, the trial court denied leave, citing the reasons in the State’s opposition memorandum.
The Court’s Holding
Writing for the court, Judge Epley explained that Crim.R. 33(B) establishes a two-step process for an untimely new-trial motion. First, the defendant must obtain leave by demonstrating through clear and convincing proof that he or she was unavoidably prevented from filing timely. A defendant meets that standard when the person had no knowledge of the ground supporting the motion and could not have discovered it within the prescribed period through reasonable diligence. If leave is granted, the defendant must file the new-trial motion within seven days. The court cited State v. Lenoir, State v. Wells, State v. McAlpin, and State v. Hatton in describing these requirements.
The appellate court reviews denial of leave for an abuse of discretion, meaning an unreasonable, arbitrary, or unconscionable attitude. It held that the trial court did not address whether Pulley had made the required clear-and-convincing showing of unavoidable prevention. Instead, by adopting the State’s arguments, the trial court denied leave based on a lack of evidence that Pulley was entitled to a new trial under Crim.R. 33(A). That approach improperly considered the merits of an anticipated motion that Pulley had not yet filed and departed from the required two-step process.
The court declined to apply contrary analysis from its recent decision in State v. Wampler, 2026-Ohio-2857. It explained that Wampler’s holding rested on res judicata because Wampler conceded that the alleged prosecutorial misconduct appeared in the record and could have been raised on direct appeal. Statements about the immateriality of the prosecutor’s unrelated conviction and disciplinary proceedings were therefore arguably dicta. The court also distinguished State v. Bethel, where the Ohio Supreme Court had already resolved the underlying Brady claim on its merits in post-conviction proceedings and declined to require a futile hearing. Pulley had filed no comparable post-conviction petition, and no court had adjudicated his proposed new-trial claim. The court sustained Pulley’s sole assignment of error, reversed the judgment, and remanded for reconsideration of his motion for leave under the proper standard. It did not grant leave, order a new trial, or decide whether the alleged misconduct warranted one.
Key Takeaways
- At the leave stage, the trial court must decide whether the defendant was unavoidably prevented from filing timely, not whether the proposed new-trial motion has merit.
- The defendant must establish unavoidable prevention by clear and convincing proof; reasonable diligence and lack of timely knowledge are central to that inquiry.
- If leave is granted, Crim.R. 33(B) requires the new-trial motion to be filed within seven days, and its merits may then be addressed.
- The remand concerns only reconsideration of Pulley’s request for leave and does not validate his prosecutorial-misconduct allegations or disturb the merits standard governing any eventual new-trial motion.
Why It Matters
The decision reinforces the procedural separation between obtaining permission to file an untimely new-trial motion and proving entitlement to a new trial. A trial court cannot defeat the threshold request by resolving materiality or merits questions prematurely, even where the proposed allegations concern a prosecutor’s later indictment or resignation.
The opinion also limits reliance on Wampler’s immateriality discussion and distinguishes Bethel’s circumstance-specific futility rationale. For practitioners, the ruling underscores the need to support leave with evidence addressing timely knowledge and reasonable diligence while reserving the ultimate merits showing for the second stage.