[Cite as State v. Smith,
2019-Ohio-1339.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OH OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
ERIC SMITH : Case No. 18 CAA 03 0020
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 15-CR-I-04-0144
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 8, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KIMBERLY E. BURROUGHS ERIC SMITH, PRO SE
140 North Sandusky Street Inmate #718-949
Deleware, OH 43015 North Central Correctional Complex
P.O. Box 1812
Marion, OH 43302
Delaware County, Case No. 18 CAA 03 0020 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Eric Smith, appeals the February 5, 2018 judgment
entry of the Court of Common Pleas of Delaware County, Ohio, denying his motion for
leave to file a motion for new trial. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On April 3, 2015, the Delaware County Grand Jury indicted appellant on
one count of aggravated burglary in violation of R.C. 2911.11, one count of kidnapping in
violation of R.C. 2905.01, two counts of aggravated robbery in violation of R.C. 2911.01,
and one count of felonious assault in violation of R.C. 2903.11, all with a firearm
specification, a repeat violent offender specification, and a forfeiture specification. The
indictment also included four counts of having weapons under disability in violation of
R.C. 2923.13 and one count of receiving stolen property in violation of R.C. 2913.51.1
{¶ 3} A jury trial commenced on July 28, 2015. The jury found appellant guilty of
the charges. By judgment entry filed September 16, 2015, the trial court sentenced
appellant to an aggregate term of forty years in prison. Appellant's convictions and
sentence were affirmed on appeal. State v. Smith, 5th Dist. Delaware No. 15CAA0077,
2016-Ohio-7566.
{¶ 4} On December 15, 2017, appellant filed a motion for leave to file a motion
for new trial based on newly discovered evidence. The evidence in question is a medical
report of the injuries sustained by the victim. Appellant caused the report to be generated
nearly two years after his trial. A hearing was held on January 22, 2018. By judgment
1Two of the weapons counts and the receiving stolen property count were not tried to the
jury.
Delaware County, Case No. 18 CAA 03 0020 3
entry filed February 5, 2018, the trial court denied the motion, finding appellant failed to
present clear and convincing evidence that he was unavoidably prevented from
discovering his "new evidence" that might warrant the filing of a motion for new trial
pursuant to Crim.R. 33.
{¶ 5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 6} "THE TRIAL COURT VIOLATED THE APPELLANT'S SIX AMENDMENT
RIGHTS TO COUNSEL WHEN IT FAILED TO PROVIDE COUNSEL AT THE JANUARY
22, 2018 EVIDENTIARY HEARING TO WHICH VIOLATED HIS RIGHTS TO DUE
PROCESS."
II
{¶ 7} "THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
APPELLANT'S MOTION FOR LEAVE TO FILE FOR A NEW TRIAL PURSUANT TO
CRIMINAL RULE 33(B) AS THE APPELLANT WAS UNAVOIDABLY PREVENTED
FROM DISCOVERY OF THE NEW EVIDENCE."
III
{¶ 8} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT RULED ON
THE MERITS OF THE APPELLANT'S MOTION FOR LEAVE TO FILE FOR A NEW
TRIAL AFTER MAKING A FINDING THAT HE WAS NOT UNAVOIDABLY PREVENTED
TO WHICH VIOLATED HIS RIGHTS TO DUE PROCESS."
I
Delaware County, Case No. 18 CAA 03 0020 4
{¶ 9} In his first assignment of error, appellant claims the trial court erred in failing
to provide him with counsel at the hearing on his motion for leave to file a motion for new
trial. We disagree.
{¶ 10} Appellant filed his motion for leave pro se. At no time did appellant make a
request for counsel to assist him.
{¶ 11} Further, in Pennsylvania v. Finely, 481 U.S. 551, 555,
107 S.Ct. 1990,
95
L.Ed.2d 539 (1987), the Supreme Court of the United States held:
We have never held that prisoners have a constitutional right to
counsel when mounting collateral attacks upon their convictions, see
Johnson v. Avery, 393 U.S. 483, 488,
89 S.Ct. 747, 750,
21 L.Ed.2d 718
(1969), and we decline to so hold today. Our cases establish that the right
to appointed counsel extends to the first appeal of right, and no further.
Thus, we have rejected suggestions that we establish a right to counsel on
discretionary appeals. We think that since a defendant has no federal
constitutional right to counsel when pursuing a discretionary appeal on
direct review of his conviction, a fortiori, he has no such right when attacking
a conviction that has long since become final upon exhaustion of the
appellate process. (Citations omitted.)
{¶ 12} Appellant's motion was a collateral attack of his conviction. As such, the
trial court was not required to provide counsel to appellant at the hearing on his motion
for leave to file a motion for new trial.
Delaware County, Case No. 18 CAA 03 0020 5
{¶ 13} Upon review, we find the trial court did not err in not providing appellant with
counsel at the hearing.
{¶ 14} Assignment of Error I is denied.
II, III
{¶ 15} In his second and third assignments of error, appellant claims the trial court
abused its discretion in finding he was not unavoidably prevented from discovery of his
new evidence and in denying his motion for leave. We disagree.
{¶ 16} In his motion to the trial court for leave to file a motion for new trial, appellant
argued he had newly discovered evidence, to wit, a medical report of the injuries
sustained by the victim. Appellant argued the report would refute the extent of the victim's
injuries "and show the truthfulness in what truly occurred. And that truth is that defendant
Smith is innocent." Appellant caused the report to be generated nearly two years after
his trial. Appellant claimed he lacked the necessary funds to pay for a medical expert.
{¶ 17} Crim.R. 33 governs new trial. Subsections (A)(6) and (B) and state the
following:
(A) Grounds. A new trial may be granted on motion of the defendant
for any of the following causes affecting materially his substantial rights:
(6) When new evidence material to the defense is discovered which
the defendant could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon the ground
of newly discovered evidence, the defendant must produce at the hearing
Delaware County, Case No. 18 CAA 03 0020 6
on the motion, in support thereof, the affidavits of the witnesses by whom
such evidence is expected to be given, and if time is required by the
defendant to procure such affidavits, the court may postpone the hearing of
the motion for such length of time as is reasonable under all the
circumstances of the case. The prosecuting attorney may produce
affidavits or other evidence to impeach the affidavits of such witnesses.
(B) Motion for New Trial; Form, Time. … 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 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.
{¶ 18} Appellant was sentenced on September 16, 2015. Because appellant was
well outside the one hundred twenty day period, he filed a motion for leave to file a motion
for new trial on December 15, 2017. To obtain such leave, appellant was required to
show by clear and convincing proof that he was unavoidably prevented from discovering
the evidence within the one hundred twenty days. State v. Lordi, 149 Ohio App.3d 627,
2002-Ohio-5517,
778 N.E.2d 605. "[A] party is unavoidably prevented from filing a motion
for new trial if the party had no knowledge of the existence of the ground supporting the
Delaware County, Case No. 18 CAA 03 0020 7
motion for a new trial and could not have learned of the existence of that ground within
the time prescribed for filing the motion for new trial in the exercise of reasonable
diligence." State v. Walden,
19 Ohio App.3d 141,
483 N.E.2d 859 (1984). Clear and
convincing proof is that proof "which will provide in the mind of the trier of facts a firm
belief or conviction as to the facts sought to be established." Cross v. Ledford,
161 Ohio
St. 469,
120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 19} In its February 5, 2018 judgment entry denying appellant's motion, the trial
court stated the following:
On the second page of his December 15, 2017 request to pursue a
new-trial claim, the defendant focuses on his "surprise" during his trial about
"the explicitness of victim David McCourt's injuries." He argues that since
his trial, he "has been relentlessly trying to obtain the funds to hire a medical
expert" to challenge the evidence that the prosecution presented to the jury
at the trial. He now has those funds and has found that expert, he contends,
and he seeks an opportunity to present that new expert's testimony at a
retrial.
I fail to see how the evidence that the defendant wishes to offer can
properly be described as new. Even if the defendant at his trial was
surprised by the testimony about his victim's injuries, the trial was his
opportunity to challenge that evidence. He could have asked for a recess
during the trial and could have requested public funds so that he could hire
an expert then to challenge the prosecution's evidence. He failed to do so.
Delaware County, Case No. 18 CAA 03 0020 8
And certainly he had the full opportunity at the trial to cross-examine the
victim and other witnesses about the extent of the victim's injuries.
…
This is not a case in which the defendant alleges that he has now
discovered some potentially exculpatory evidence that the prosecution
withheld from him during his trial. Instead, he simply claims that he would
like a new chance to rebut with some additional evidence of his own the
evidence that he and the jury heard during the trial. Yet, with reasonable
diligence before or during his trial, he could have discovered and could have
presented the evidence that he now labels as "new." That kind of evidence
cannot rightly be described as evidence that he was "unavoidably
prevented" from discovering before now.
{¶ 20} The trial court further found the "expert witness report" appellant submitted
with his motion is dated June 28, 2017, yet appellant waited until December 15, 2017, to
file his motion for leave. The trial court found this delay "is not reasonable." The trial
court concluded: "the defendant has not presented clear and convincing proof that he was
unavoidably prevented from discovering the kind of new evidence that might warrant the
filing of a new-trial motion 2½ years after his trial."
{¶ 21} We concur with the trial court's well-reasoned analysis. Two years after the
trial, appellant seeks to refute the victim's injuries, claiming he lacked the necessary funds
to hire a medical expert. However, during the trial, appellant could have requested public
funds to hire an expert, but did not do so. He also had the opportunity to cross-examine
Delaware County, Case No. 18 CAA 03 0020 9
the victim and others about the extent of the victim's injuries. Furthermore, appellant did
not file his motion for leave until over five months after receiving the report.
{¶ 22} Upon review, we find the trial court did not err in finding appellant was not
unavoidably prevented from discovery of his "new evidence" and in denying appellant's
motion for leave.
{¶ 23} Assignments of Error II and III are denied.
{¶ 24} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Delaney, J. concur.
EEW/db 327
