[Cite as State v. Mock, 2020-Ohio-3667.]


                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                Plaintiff-Appellee,              :
                                                          No. 108837
                v.                               :

TYRONE MOCK,                                     :

                Defendant-Appellant.             :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: July 9, 2020


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-15-597566-A


                                           Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Tasha Forchione, Assistant Prosecuting
                Attorney, for appellee.

                Susan J. Moran, for appellant.


FRANK D. CELEBREZZE, JR., J.:

                Defendant-appellant Tyrone Mock (“appellant”) brings the instant

appeal challenging the trial court’s denial of his motion for leave to file a delayed

motion for new trial. Appellant argues that the trial court erred by finding that he

was not unavoidably delayed in discovering previously undisclosed jury questions
and answers and evidence of Brady violations.1 After a thorough review of the

record and law, this court affirms the decision of the trial court.

                         I. Factual and Procedural History

             Appellant was convicted on a number of counts relating to a check fraud

ring he had cultivated and was sentenced to a prison term totaling 13 years.2

Appellant appealed his conviction and sentence, which were affirmed by this court.

Appellant then appealed this court’s decision to the Supreme Court of Ohio,

which declined to accept jurisdiction.       See State v. Mock, 06/06/2018 Case

Announcements #2, 2018-Ohio-2155, 99 N.E.3d 426.

             In pursuing postconviction remedies, appellant’s prior appellate

counsel, David N. Patterson (“Attorney Patterson”), conducted an investigation of

the facts surrounding appellant’s criminal case.        As part of his investigation,

Attorney Patterson reviewed the detective’s affidavit that was submitted to the

common pleas court in support of a search warrant to install and monitor a GPS

tracking device on appellant’s vehicle.       From this review, Attorney Patterson

determined that the statements of a confidential informant were the sole material

factors in establishing probable cause to support the issuance of the search warrant.

The detective’s affidavit for the GPS tracking warrant noted that the confidential




      1See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
      2 For a thorough recitation of the underlying facts and prior procedural history of
this matter, see this court’s opinion in appellant’s direct appeal, State v. Mock, 2018-
Ohio-268, 106 N.E.3d 154 (8th Dist.).
informant signed a proffer letter and positively identified appellant from a photo

lineup.

             Attorney Patterson then contacted the confidential informant’s

attorney, Mitchell J. Yelsky (“Attorney Yelsky”). From this conversation, Attorney

Patterson determined that the confidential informant had not signed a proffer letter

nor had she identified appellant from a photo lineup. Attorney Patterson surmised

that the detectives and the state intentionally withheld relevant and material

evidence from appellant and falsified facts and events in the affidavits for the search

warrant in order to mislead the court.

             Attorney Patterson also conducted phone interviews with two women

associated with appellant, Tammy Jordan and Brandon Fambro, in March and July

2018, respectively. Ms. Jordan provided an affidavit to Attorney Patterson, and Ms.

Fambro made statements to Attorney Patterson that appellant claims constitute

evidence that the phone records used in his criminal case could not have had a

relationship to appellant’s address.

             In addition, in 2018, Attorney Patterson’s legal assistant, Linda Head

(“Ms. Head”), reviewed the entire physical record of appellant’s case on file with the

clerk of courts. During this review, Ms. Head located four notes containing jury

questions to the trial court and the corresponding answers. After this discovery, Ms.

Head was taken ill and hospitalized with copies of the notes still in her possession.

She was unable to advise appellant’s counsel of her discovery until she returned to

work in August 2018. In reviewing the transcript of the proceedings in appellant’s
criminal case, she noted that it did not contain any memorialization of the jury

questions and the court’s answers.

             As a result of the discovery of the notes containing the jury questions

and the court’s answers and the possible evidence relating to the phone records and

the probable cause for the search warrant, appellant sought to file a motion for new

trial. On December 14, 2018, appellant filed (1) delayed motion for a new trial

pursuant to Crim.R. 33(A)(1), (2), and (6) based on newly discovered evidence; and

(2) motion for order finding he was unavoidably prevented from filing a motion for

a new trial within the fourteen days after the verdict was rendered or within the 120

days after the verdict was rendered and motion for leave to file a delayed motion

for new trial pursuant to Crim.R. 33(A)(1), (2), and (6) based on newly discovered

evidence. In support of his motions, appellant submitted affidavits of Ms. Head,

Attorney Patterson, and Ms. Jordan along with his own affidavit.

             The state filed a brief in response to appellant’s motion that included

an affidavit of Attorney Yelsky in which he averred that several paragraphs of

Attorney Patterson’s affidavit were materially false and denied saying “anything

remotely close” to what Attorney Patterson stated.

             On May 21, 2019, following a status conference, the trial court

requested supplemental briefing to address the issue of whether there was an

unavoidable delay in obtaining the alleged new evidence to be used in support of

appellant’s motion for new trial. Appellant and the state subsequently submitted

additional briefing on this issue.
              On June 24, 2019, the trial court denied appellant’s motion for leave

to file a motion for a new trial, finding that appellant did not demonstrate by clear

and convincing evidence that he was unavoidably prevented from discovering the

new evidence and filing his motion within the time provided by Crim.R. 33(B). With

regard to the notes containing the jury questions and the court’s answers, the trial

court specifically found that the record of appellant’s case had been available to the

parties since November 7, 2016, and that, even though appellant himself was

incarcerated, appellant was represented by counsel throughout his appeal, who had

access to the record.

             The trial court held that appellant had not shown that he or his counsel

exercised reasonable diligence in investigating the record from the time it was

available until sometime in 2018 when Ms. Head conducted her review. Further,

the trial court noted that appellant was aware of Ms. Jordan and Ms. Fambro’s

relevance to the case as their names had come up during the June 2016 suppression

hearing, and appellant did not identify any impediments that would have prevented

him from obtaining affidavits or statements from either of the women prior to 2018.

The trial court therefore found that appellant failed to demonstrate that he was

unavoidably prevented from discovering evidence challenging the search warrants

or the phone records.

              Appellant filed the instant appeal on July 23, 2019, raising the

following assignments of error for our review:
       I. The trial court erred in denying appellant’s motion for new trial
       under Crim.R. 33 based on a finding that appellant was not
       unavoidably delayed in discovering previously undisclosed jury
       questions and the court’s answers which were the basis for a motion for
       new trial.

       II. The trial court erred in denying appellant’s motion for new trial
       under Crim.R. 33 based on a finding that appellant was not
       unavoidably delayed in discovering Brady violations which were the
       basis for a motion for new trial.

                                II. Law and Analysis

              This court reviews the denial of a motion for leave to file a delayed

motion for new trial for an abuse of discretion. State v. Dues, 8th Dist. Cuyahoga

No. 105388, 2017-Ohio-6983, ¶ 11. An abuse of discretion is not simply an error of

law or judgment, but implies the court’s attitude is unreasonable, arbitrary, or

unconscionable. State v. Yates, 8th Dist. Cuyahoga No. 96664, 2011-Ohio-4962,

¶ 5.

              Under Crim.R. 33(A), a new trial may be granted on motion of the

defendant for any of the following causes materially affecting his or her substantial

rights:

       (1) Irregularity in the proceedings, or in any order or ruling of the
       court, or abuse of discretion by the court, because of which the
       defendant was prevented from having a fair trial;

       (2) Misconduct of the jury, prosecuting attorney, or the witnesses for
       the state;

       ***

       (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 * * *.
              A motion for new trial based upon grounds other than newly

discovered evidence must be filed within 14 days after the verdict was rendered.

Crim.R. 33(B). A motion for new trial based upon newly discovered evidence must

be filed within 120 days after a verdict is rendered. Id. A party who fails to file a

motion for new trial within the prescribed time frame must seek leave from the trial

court to file a delayed motion for new trial. State v. Hale, 8th Dist. Cuyahoga No.

107782, 2019-Ohio-1890, ¶ 9. The trial court may grant leave to file a delayed

motion for new trial if the movant shows, by clear and convincing evidence, that he

was unavoidably prevented from filing the motion for new trial or discovering the

evidence and he sought leave within a reasonable time. Id. at ¶ 9-10. If a significant

delay occurs, the trial court must ascertain whether the delay was reasonable under

the circumstances or whether the movant provided an adequate explanation as to

why the delay occurred. Id.

              The jury rendered its verdict on August 19, 2016, and appellant did not

file his motion for leave to file a delayed motion for new trial until December 14,

2018. As this was well beyond the fourteen or 120-day time limits of Crim.R. 33(B),

appellant’s motion for leave must have established by clear and convincing evidence

that he was unavoidably prevented from filing his motion or discovering the new

evidence and that the motion for leave was filed within a reasonable time.

             In appellant’s first assignment of error, he argues that the trial court

erred by finding that he was not unavoidably delayed in discovering previously

undisclosed jury questions and the court’s corresponding answers.
             A. Discovery of the jury questions and the court’s answers

                Appellant asserts that four notes with jury questions and court

answers3 that had not been previously disclosed to him were discovered when

Attorney Patterson’s legal assistant, Ms. Head, conducted a review of the physical

court file. Appellant argues throughout his brief that he could not have known of

the existence of these notes because they were not part of the record. Appellant

contends that expecting his appellate counsel to be aware of the notes was

comparable to requiring him to “find a needle in a haystack” because the notes

accounted for only four pages in a file of over 2,400 pages.

                In support of his motion for leave, appellant submitted the affidavit of

Ms. Head, who stated that she reviewed the physical court file of appellant’s case in

2018 and discovered the notes at that time. After her discovery, Ms. Head stated

that she was taken ill and hospitalized with the copies of the notes still in her

possession. She was not able to inform Attorney Patterson of her findings until she

returned to work in August 2018. It was at that time that she reviewed the transcript

from appellant’s case and determined that there was no memorialization of the

notes.

                 The trial court found that appellant did not present clear and

convincing evidence that appellant was unavoidably prevented from discovering the

notes containing the jury questions and the court’s answers. Clear and convincing



        Appellant states in his brief that there were three jury questions and court
         3

responses and one response without an accompanying question.
evidence is the amount of proof that ‘“will produce in the mind of the trier of fact a

firm belief or conviction as to the facts sought to be established.’” In re K.W., 8th

Dist. Cuyahoga No. 106039, 2018-Ohio-1096, ¶ 14, quoting In re Awkal, 95 Ohio

App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), fn. 2, citing Lansdowne v. Beacon

Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979 (1987).

              A defendant is “unavoidably prevented” from filing a timely motion for

new trial “when the defendant (1) had no knowledge of the existence of the grounds

supporting the motion for new trial, and (2) could not have learned, in the exercise

of reasonable diligence, of the existence of those grounds within the prescribed

time.” State v. Hill, 8th Dist. Cuyahoga No. 108250, 2020-Ohio-102, ¶ 16-17, citing

State v. Gray, 8th Dist. Cuyahoga No. 107394, 2019-Ohio-1638, ¶ 11. The trial court

held that appellant had not demonstrated that he or his counsel exercised

reasonable diligence in investigating the record on appeal during the extensive time

that it was available.

               As noted by the trial court, Ms. Head stated very generally in her

affidavit that she discovered the notes “in 2018”; the record had been available to

appellant and his counsel since November 7, 2016. Appellant’s motion did not

identify any reason why the record had not been examined between that date and

the time “in 2018” when Ms. Head conducted her review. In Ms. Head’s affidavit,

she does not claim that she was prevented from examining the file any earlier than

she did or cite any other impediments to her review of the file.
              Appellant stated in his affidavit in support of his motion that Attorney

Patterson “litigated [his] appeal to the Eighth Appellate District of Cuyahoga County

in Case No. CA-16-104997 * * * and litigated [his] Notice of Appeal and

Memorandum in Support of Jurisdiction in a Discretionary Appeal to the Ohio

Supreme Court in Case No. 2018-0363.” Attorney Patterson was therefore involved

in the case prior to Ms. Head’s review of the physical record of the appeal in 2018

and could have reviewed the record long before that time.

              R.C. 2945.10(G) requires the “[w]ritten charges and instructions shall

be taken by the jury in their retirement and returned with their verdict into court

and remain on file with the papers of the case.” The statute does not provide any

requirements that a trial court must adhere to when regarding jury questions and

responses.   However, appellant acknowledged in his brief that the trial court

“physically placed [the jury questions and answers] in the court’s file which was

subsequently sent over to the Court of Appeals.” Accordingly, the jury questions and

the court’s responses thereto were a part of the file that was available for appellate

counsel to review since November 7, 2016. See, e.g., State v. Blanda, 12th Dist.

Butler No. CA2013-06-109, 2014-Ohio-2234, ¶ 22-25. Simply because Attorney

Patterson and/or his assistant did not examine the court’s file until 2018 does not

mean that the jury questions and court responses were not a part of the record in

existence and readily available to appellant and his counsel.

              Based on the record before this court, we find that appellant has not

presented clear and convincing evidence to show that appellant or his counsel, with
due diligence, could not have investigated the record on appeal and therefore,

appellant has not established that he was unavoidably prevented from filing his

motion. Accordingly, we cannot say that the trial court abused its discretion when

it denied appellant’s motion for leave to file a delayed motion for new trial.

Appellant’s first assignment of error is without merit and is therefore overruled.

          B. Evidence relating to search warrants and phone records

               In his second assignment of error, appellant argues that the trial court

erred in denying appellant’s motion for new trial under Crim.R. 33 based on a

finding that appellant was not unavoidably delayed in discovering evidence of Brady

violations that were the basis for appellant’s motion for new trial.

              Appellant asserts that he has obtained information relevant to the

procurement of the search warrants utilized in appellant’s case and evidence

challenging the phone records’ link to his street address. Specifically, appellant

contends that, based upon Attorney Patterson’s conversation with Attorney Yelsky,

he has evidence that the confidential informant did not sign a proffer or participate

in a photo lineup and that the detectives falsified facts in order to mislead the court

into issuing the search warrant.4 In addition, appellant asserts that, through

conversations with Ms. Jordan and Ms. Fambro, Attorney Patterson discovered



      4  The state disputes Attorney Patterson’s assertions and presented the affidavit of
Attorney Yelsky in support of their brief opposing appellant’s motion, who denied the
statements in Attorney Patterson’s affidavit. The trial court noted that possible false
statements by Attorney Patterson in his affidavit were concerning but did not weigh the
credibility of the affidavits because it held that the affidavits on their face did not
demonstrate that appellant was unavoidably prevented from filing his motion.
evidence that the phone records obtained by the police and used in his criminal case

could not have had a relationship to appellant’s address.

              We find that appellant’s motion did not demonstrate clear and

convincing evidence that appellant was unavoidably prevented from discovering the

evidence relating to the search warrant or the phone records. Attorney Patterson

stated in his affidavit that he investigated the circumstances surrounding appellant’s

criminal case “for the purpose of raising the most viable issues on direct appeal,

and/or to advocate and exhaust all probable post-conviction remedies for

[appellant].” (Emphasis added.) Accordingly, Attorney Patterson acknowledged

that he investigated the case during the pendency of appellant’s direct appeal. The

opinion for appellant’s direct appeal was issued on January 25, 2018; however,

Attorney Patterson’s contact with Ms. Jordan did not take place until March 2018,

his conversation with Attorney Yelsky did not occur until May 2018, and he did not

speak with Ms. Fambro until July 2018.

              Appellant did not identify any impediments that would have

prevented Attorney Patterson from having these conversations or from obtaining

Ms. Jordan’s affidavit or Ms. Fambro’s statement earlier. Ms. Jordan, Ms. Fambro,

the confidential informant, and the basis for the GPS warrant were all mentioned at

the suppression hearing that was held on June 1, 2016.

              “It is the duty of the criminal defendant and his trial counsel to make

a serious effort, on their own, to discover potential, favorable evidence.” Hill, 8th

Dist. Cuyahoga No. 108250, 2020-Ohio-102, at ¶ 31, citing State v. Williams, 8th
Dist. Cuyahoga No. 99136, 2013-Ohio-1905, ¶ 9.            Claims that evidence was

undiscoverable simply because the defense did not take the necessary steps earlier

to obtain the evidence do not satisfy the requisite standard. State v. Anderson, 10th

Dist. Franklin No. 12AP-133, 2012-Ohio-4733, ¶ 14; see also State v. Golden, 10th

Dist. Franklin No. 09AP-1004, 2010-Ohio-4438, ¶ 15. Moreover, “[t]he phrases

‘unavoidably prevented’ and ‘clear and convincing proof’ do not allow one to claim

that evidence was undiscoverable simply because affidavits were not obtained

sooner.” State v. Fortson, 8th Dist. Cuyahoga No. 82545, 2003-Ohio-5387, ¶ 11.

              Because appellant has not presented clear and convincing evidence to

show that he or his counsel, with reasonable diligence, could not have learned of the

evidence relating to the search warrant or the phone records earlier, appellant has

not established that he was unavoidably prevented in obtaining this evidence. As

the affidavits submitted by appellant do not satisfy the required clear and convincing

standard, we cannot say that the trial court abused its discretion when it denied

appellant’s motion for leave to file a delayed motion for a new trial. Appellant’s

second assignment of error is overruled.

              Finally, we note that appellant appears to raise two other instances in

which the trial court abused its discretion in ruling on his motion. Specifically,

appellant states that the trial court abused its discretion by not holding a hearing on

appellant’s motion and by not recusing itself and reviewing its own allegedly

improper conduct with regard to the jury questions and the court’s answers. Neither

of these arguments were set forth as assignments of error or separate issues. The
propositions were simply mentioned in the statement of facts section of appellant’s

brief and as an aside in his argument regarding his first assignment of error without

any further explanation or supporting authority.

              App.R. 12 outlines the parameters of the appellate court’s exercise of

its reviewing powers and provides that a court of appeals is not required to consider

errors that were not separately assigned and argued, as required by App.R. 16(A).

Hungler v. Cincinnati, 25 Ohio St.3d 338, 341, 496 N.E.2d 912 (1986). “[E]rrors

not specifically pointed out in the record and separately argued by brief may be

disregarded.” State v. Hill, 8th Dist. Cuyahoga No. 70930, 1997 Ohio App. LEXIS

3006, 12 (July 10, 1997), citing C. Miller Chevrolet v. Willoughby Hills, 38 Ohio

St.2d 298, 313 N.E.2d 400 (1974).

              We find that appellant’s brief did not present any argument or

authority in support of the above-noted propositions, and we decline to craft an

argument for him. Accordingly, appellant’s assertions regarding the trial court’s

refusal to hold a hearing or recuse itself shall be disregarded.

                                    III. Conclusion

              Appellant failed to demonstrate that the trial court abused its

discretion in finding that appellant was not unavoidably prevented from discovering

either the notes containing jury questions and the court’s answers or the claimed

evidence of Brady violations within the time provided by Crim.R. 33(B).

              Judgment affirmed.

      It is ordered that appellee recover from 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.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and
RAYMOND C. HEADEN, J., CONCUR
