YOUNGSTOWN — Judge Maureen Sweeney of Mahoning County Common Pleas Court has denied a motion asking that killer John E. Morgan get a new trial in the July 31, 2022, shooting death of Daniel Peek Sr., 46, outside of Peek’s home on East Florida Avenue on Youngstown’s South Side.

The ruling means Morgan can be sentenced at 10:30 a.m. today as planned.

The Mahoning County Prosecutor’s Office on Tuesday filed a response to the request for a new trial after Morgan, 47, of Campbell, was convicted Feb. 28 of the murder.

Morgan’s motion was filed under seal, meaning not open to the public, but two assistant county prosecutors opposed the request, saying Morgan’s filing asked for a new trial based on comments from two jurors about the jury instructions they were given.

Assistant Prosecutors Rob Andrews and Pat Fening said the request was filed 29 days after the jury verdict and argued. Morgan argued that he was prevented unavoidably from timely filing the motion because he was in a coma from Feb. 28 until March 9.

The prosecutor’s filing stated that Morgan “overdosed on drugs that he or someone on his behalf illegally smuggled into the court. Defendant then cowardly overdosed in the Mahoning County jail booking cell after learning that he was found guilty” of murder, felonious assault and voluntary manslaughter.

“Simply put, defendant’s ‘significant health issues’ were self-inflicted,” the prosecution filing states. Furthermore, the defense has indicated that Morgan’s attorneys were not able to visit Morgan until March 9, after he woke up. But “this is contradicted by the fact that defendant was released from the hospital and booked into the jail March 7, 2024, which would not have been possible had the defendant still been in a ‘coma.'”

The motion for a new trial argued that two jurors were confused by the jury instructions and would have voted differently if they were not confused, the prosecution filing states. Affidavits from the two jurors were included in the defense filing.

“Interestingly, the affidavits indicate that the jurors realized their confusion while speaking with counsel in the jury room after the verdict was read. This means that the information that the motion was made upon was known to the defense on the day of the verdict, Feb. 28, 2024,” the prosecutor’s filing states.

The request for a new trial fails for three reasons, prosecutors argued: It was requested too late and does not conform with two criminal rules.

Criminal Rule 33 requires a person to file for a new trial within 14 days of a verdict with the exception of newly discovered evidence “unless it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from filing his motion for a new trial,” the prosecution filing states.

The judge’s ruling states that because Morgan was found guilty Feb. 28 and “after overdosing, being taken to the hospital and refusing medical treatment, the defendant was released from the hospital and booked into the (county jail) on March 7, 2024,” only eight days passed.

That means Morgan “was not unavailable” to discuss the filing of a motion for a new trial on time, the judge ruled.

“Additionally, the defendant did not sign an affidavit nor was he present to witness the allegations made in the motion and therefore his availability is moot,” the ruling states.

Furthermore, the judge found that it is not possible that the jurors were subject to “misdirection,” as alleged in the motion because “since the jurors asked, in writing, numerous questions and at times wanted clarification,” the ruling states.

“The jurors each had their own copy of the jury charge which contained the legal definition of self-defense,” the judge noted. And the affidavits of the two jurors attached to the motion “are juror testimony, which is prohibited by Evidence Rule 66,” the judge’s ruling stated.

The prosecution filing also argued that Morgan could not benefit from a delay in requesting a new trial when the delay was “self-inflicted.” “In other words, but for the defendant illegally conveying drugs into the courthouse and taking them while in custody upon his conviction for murder, he would not have been in a coma.”

Finally, the prosecution filing stated that “There is no logic in defendant’s argument that he needed to be consulted with by his counsel prior to the motion being filed. Defendant cannot and did not add anything to the motion. Rather, the motion is entirely based on the defense counsel’s conversations with the jurors after the verdict.

“Consultation with defendant was not a prerequisite to filing the motion as any defendant would want a new trial if they could get one after they were convicted of any offense, especially murder,” the filing states.

Morgan, 47, of Campbell, is scheduled for sentencing at 10:30 a.m. today before Judge Maureen Sweeney. It is not known whether the motion will postpone the sentencing.