[Cite as State v. Hiler, 2017-Ohio-7636.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case No. 27364
                                                  :
 v.                                               :   Trial Court Case No. 11-CR-2814
                                                  :
 RICHARD LEE HILER                                :   (Criminal Appeal from
                                                  :    Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                            OPINION

                          Rendered on the 15th day of September, 2017.

                                             ...........

MATHIAS H. HECK, JR., by ALICE PETERS, Atty. Reg. No. 0093945, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

RICHARD LEE HILER, #677-030, P.O. Box 69, London, Ohio 43140
     Pro Se, Defendant-Appellant

                                            .............

HALL, P.J.
                                                                                         -2-




       {¶ 1} Richard Lee Hiler appeals pro se from the trial court’s decision, order, and

entry overruling his combined Crim.R. 33 motion for leave to seek a new trial and motion

for a new trial.

       {¶ 2} Hiler advances two assignments of error. First, he contends the trial court

erred in not finding him unavoidably prevented from timely filing a new-trial motion.

Second, he claims the trial court erred in not holding an evidentiary hearing to determine

whether he was unavoidably prevented from timely filing his motion.

       {¶ 3} The record reflects that a jury found Hiler guilty on two counts of felonious

assault in January 2013. The offenses involved Hiler’s act of stabbing the victim, Mark

Sparks, with a knife. The trial court merged the two counts as allied offenses and imposed

an eight-year prison term. In January 2014, this court overruled three assignments of

error and affirmed on direct appeal. In particular, this court rejected a manifest-weight

argument premised on Hiler’s self-defense claim. This court also rejected various

allegations of ineffective assistance of trial counsel. Finally, this court concluded that a

jury instruction on the lesser-included offense of aggravated assault was not warranted.

See State v. Hiler, 2d Dist. Montgomery No. 25609, 2014-Ohio-137.

       {¶ 4} In June 2016, Hiler filed a combined motion for leave to seek a new trial and

motion for a new trial pursuant to Crim.R. 33(A)(2) and (A)(5). The substantive basis for

the motion was the State’s alleged failure to disclose Sparks’ 2002 forgery conviction for

which he received community control. Hiler argued that he could have used this criminal

record to impeach Sparks’ credibility at trial. With regard to his delay in seeking a new

trial, Hiler asserted that his incarceration rendered him unavoidably prevented from
                                                                                           -3-


discovering Sparks’ criminal record until after a friend spontaneously contacted him in

prison in April 2016. Hiler asserted that this unidentified friend then obtained Sparks’

criminal record in May 2016. In a “memorandum in support of unavoidable prevention,”

Hiler argued that “it was not possible to get the records check until the defendant spoke

or heard from his friend.” (Doc. #11 at 2). After filing his joint motion for leave and motion

for a new trial, Hiler separately filed an “Affidavit of Unavoidable Prevention.” (Doc. #13).

His affidavit states:

                I am an adult and I am competent to testify as to the facts that follow:

         It has taken me 3+ years to obtain some of the evidence in my favor, to wit,

         Mark J. Sparks’ criminal record, after the blatant and complete disregard of

         my case by four (4) paid attornies [sic] of the Dayton Bar Assoc. * * *. I had

         to employ an old friend who has chosen to testify in court, pertaining to not

         only to this fact but, to my character as well. Having known him and his

         common law wife for 20+ years they know I’m physically incapable of the

         major part of Sparks’ fabrication, chasing him.

(Id.).

         {¶ 5} The trial court overruled Hiler’s motion, reasoning:

                Considering that Rule 33(B) bifurcates the process of requesting a

         new trial, the Court treats Defendant’s Trial Motion as the first step. So the

         Court must determine whether or not Defendant was unavoidably prevented

         from discovering the ground asserted in his Trial Motion—that being the

         criminal record of Mark Sparks, a State witness, which Defendant alleges

         the prosecutor failed to disclose. Simply put, Defendant was not
                                                                                           -4-


       unavoidably prevented from discovering such information. As other Ohio

       courts have found that such information is easily discoverable prior to trial,

       this Court finds the same. Not only has Defendant failed to establish that

       his trial counsel did not have such information at the trial, but he has failed

       to give any reason why such information was unobtainable at that time,

       much less as a result of prosecutorial misconduct. Suffice it to say,

       Defendant has failed to demonstrate such facts by clear and convincing

       evidence.

              Because the Court finds that Defendant was not unavoidably

       prevented from discovering the ground for his Trial Motion, he was required

       to bring such motion within fourteen days after the verdict was rendered. He

       did not, therefore his Trial Motion is untimely. As such, Defendant’s Trial

       motion is OVERRULED.

(Doc. #15 at 3).

       {¶ 6} In his first assignment of error, Hiler challenges the trial court’s finding that

he was not unavoidably prevented from discovering Sparks’ criminal record and timely

filing a new-trial motion. Hiler also contends he did establish that the criminal record was

not provided to his trial attorney. In support, he cites Exhibit 2 to his new-trial motion,

which he claims is the discovery his attorney received. Hiler notes that Sparks’ criminal

record is not among those materials. He also alleges that various attorneys failed to obtain

the criminal record at issue. Finally, in his second assignment of error, Hiler contends the

trial court erred in failing to hold a hearing to determine whether he was unavoidably

preventing from discovering Sparks’ criminal record.
                                                                                          -5-


       {¶ 7} Upon review, we find both assignments of error to be unpersuasive. As set

forth above, Hiler sought a new trial under Crim.R. 33(A)(2), which involves prosecutorial

misconduct, and Crim.R. 33(A)(5), which involves an “[e]rror of law occurring at the trial.”

Under Crim.R. 33(B), Hiler had 14 days after the jury’s verdict to file his motion.1 Because

he did not do so, Crim.R. 33(B) obligated him to establish by “clear and convincing proof”

that he “was unavoidably prevented from filing his motion for a new trial” within the

required time.

       {¶ 8} We review for an abuse of discretion the trial court’s determination that Hiler

did not establish being unavoidably prevented from timely seeking a new trial. State v.

Wilson, 2d Dist. Montgomery Nos. 24461, 24496, 24501, 2012-Ohio-1660, ¶ 38; State v.

Taylor, 2d Dist. Montgomery No. 23916, 2011-Ohio-2563, ¶ 24. We see no abuse of

discretion here.

       {¶ 9} “ ‘[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 motion for a new

trial and could not have learned of the existence of the ground supporting the motion for

a new trial within the time prescribed for filing the motion for new trial in the exercise of

reasonable diligence.’ ” State v. Thompson, 2d Dist. Montgomery No. 25016, 2012-Ohio-

4862, ¶ 7, quoting State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th

Dist.1984).

       {¶ 10} In Thompson, we recognized a “material difference between being unaware



1 We note that a motion for a new trial under Crim.R. 33(A)(6) based on newly discovered
evidence has a longer 120-day filing period. But Hiler did not seek a new trial under
Crim.R. 33(A)(6), a point he stresses in his reply brief, and did not come close to meeting
the 120-day time period either.
                                                                                           -6-

of certain information and being unavoidably prevented from discovering it.” Thompson,

at ¶ 8. Even if Hiler was unaware of Sparks’ criminal record until shortly before he filed

his new-trial motion nearly three and one-half years after his conviction, the trial court

acted within its discretion in concluding that he had not been unavoidably prevented from

timely discovering that information.

       {¶ 11} Hiler does not argue on appeal that he had no reason to suspect the

existence of Sparks’ criminal record. To the contrary, he professes to have had long-

standing knowledge or suspicion of its existence, as evidenced by the fact that he

purportedly has asked four different attorneys to obtain it for him. (Appellant’s brief at 1).

Although Hiler contends he had no way to obtain the record until a friend contacted him

in prison, Hiler acknowledges that the record has been available on-line and that his friend

obtained it that way. The trial court was not required to accept Hiler’s claim that it took

him nearly three and one-half years to locate someone with internet access or other

means who would obtain the record for him. At a minimum, rejection of this argument was

not an abuse of discretion. Compare State v. Roberts, 8th Dist. Cuyahoga No. 95533,

2011-Ohio-2534, ¶ 19 (“Additionally, the police reports and court documents attached to

Roberts’s petition have been a matter of public record since 2006. Thus, Roberts has not

demonstrated that he was unavoidably prevented from discovering the facts upon which

he bases his petition.”); State v. Smith, 2d Dist. Miami No. 97 CA 46, 1998 WL 404458,

*5 (Mar. 27, 1998) (“* * * the fact of [defendant’s] incarceration, without more, does not

amount to clear and convincing proof that he was unavoidably prevented from discovering

[allegedly withheld] evidence within the time limitations of Crim.R. 33(B)”); State v.

Neguse, 10th Dist. Franklin No. 99AP-843, 2010-Ohio-1387, ¶ 12 (“The second piece of
                                                                                                -7-


evidence offered by appellant in support of his motion for new trial was the denial of the

existence of any criminal convictions by witnesses Meadows and Fitzgerald when asked

about their criminal records at trial. Nothing in the materials offered by appellant in support

of his motion offer any basis to conclude that appellant was unavoidably prevented from

discovering this evidence during the 120-day period for filing a timely motion for new

trial.”).

            {¶ 12} The trial court also did not err in overruling Hiler’s motion without holding an

evidentiary hearing. A defendant is entitled to a hearing on a motion for leave to seek a

new trial if he submits documents that on their face support his claim of being unavoidably

prevented from meeting Crim.R. 33’s time requirement. See, e.g., State v. Lanier, 2d Dist.

Clark No. 2009 CA 84, 2010-Ohio-2921, ¶ 16. Here the only documents Hiler submitted

were (1) Sparks’ on-line criminal record from a public web site, (2) apparent discovery

materials in the form of offense information and a police report, and (3) Hiler’s own

“Affidavit of Unavoidable Prevention.” Sparks’ on-line criminal record established that it

was available to Hiler or anyone else who sought it for him. The discovery materials did

nothing to demonstrate that Hiler was unavoidably prevented from meeting the time

requirement in Crim.R. 33. Finally, Hiler’s affidavit also failed to make such a showing.

Therein, he stated that it took him three and one-half years to obtain Sparks’ criminal

record, that four attorneys had disregarded his case, and that he “had to employ an old

friend” to help him. In our view, these averments failed to demonstrate that he was

unavoidably prevented from discovering Sparks’ record, which was publicly available to

anyone with internet access or other means to obtain it. On its face, Hiler’s cursory

affidavit did not support his claim about being unavoidably prevented from discovering
                                                                                         -8-

the criminal record. Compare Thompson at ¶ 10 (“The only document Thompson

submitted addressing the ‘unavoidably prevented’ issue was his mother’s affidavit. It

established that she did not discover Dr. Barnes, Dr. Leestma, and the opinions they now

hold until shortly before Thompson filed his motion. On its face, however, the affidavit did

not necessarily support a claim that Thompson was ‘unavoidably prevented’ from

discovering those doctors or their opinions earlier. Although Thompson’s mother made

this claim, we are only required to accept her factual allegations as true.”).

         {¶ 13} Because Hiler failed to provide clear and convincing proof that he was

unavoidably prevented from filing his motion in a timely manner, the trial court did not

abuse its discretion in denying the motion. Because Hiler further failed to support his

request for leave with documentation that facially supports his claim he was unavoidably

prevented from filing it in a timely manner, the trial court was not required to conduct an

evidentiary hearing before denying the motion. We therefore overrule Hiler’s two

assignments of error and affirm the judgment of the Montgomery County Common Pleas

Court.

                                       .............

WELBAUM, J., concurs.

FROELICH, J., concurring:

         {¶ 14} I agree with the majority and write only to comment that even if we were not

to find that the Appellant failed to satisfy the “unavoidably prevented” requirement, the

judgment of the trial court should be affirmed.

         {¶ 15} The alleged discovery violation conceivably could constitute prosecutorial

misconduct. But Crim.R. 33(C) requires a new-trial motion based on prosecutorial
                                                                                           -9-


misconduct to be supported by an affidavit showing the truth of the allegations. Hiler’s

affidavit only addressed his delay in seeking a new trial. Nowhere in that affidavit did Hiler

aver that the prosecutor possessed but failed to turn over Sparks’ criminal record, which

is the essence of the misconduct claim. 2 This court has recognized that a Crim.R.

33(A)(2) motion is subject to dismissal when a defendant fails “to attach an affidavit

showing the truth of his allegations of prosecutorial * * * misconduct, as required by

Crim.R. 33(C).” Smith at *5; see also State v. Dudley, 2d Dist. Montgomery No. 23613,

2010-Ohio-4152, ¶ 43 (“A trial court does not abuse its discretion by denying a motion or

hearing on such motion for new trial on Crim. R. 33(A)(2) and (3) grounds if no affidavits

are submitted with the motion.”); City of Dayton v. Moser, 2d Dist. Montgomery No. 16773,

1998 WL 598119, *1 (Sept. 11, 1998) (noting that the absence of the affidavit required by

Crim.R. 33(C) “is fatal to a motion for a new trial”).

       {¶ 16} Even on the merits, Hiler’s claim about prosecutorial misconduct and the

allegedly withheld criminal record would not entitle him to a new trial. “Failure to disclose

the criminal record of a witness does not automatically warrant a new trial.” State v.

Wogenstahl, 2004-Ohio-5994, 970 N.E.2d 447, ¶ 27 (1st Dist.). In such a case, a

defendant must establish a reasonable probability that the result would have been

different if the evidence had been disclosed. State v. Kitzler, 8th Dist. Cuyahoga No.

69076, 1996 WL 38871, *2 (Feb. 1, 1996), citing State v. Johnston, 39 Ohio St.3d 48, 60,



2 Contrary to Hiler’s argument, nothing in the record establishes that the prosecutor failed
to turn over Sparks’ criminal record. The police report attached to Hiler’s new-trial motion
does not establish that it was the only discovery provided to defense counsel. Nor does
defense counsel’s apparent failure to cross examine Sparks about his criminal record
establish that the prosecutor did not turn over the criminal record in discovery.
                                                                                           -10-


529 N.E.2d 898 (1988).3

       {¶ 17} In the present case, the evidence against Hiler was strong if not

overwhelming. See State v. Hiler, 2d Dist. Montgomery No. 25609, 2014-Ohio-137, ¶ 4-

24 (summarizing the evidence presented at trial). In affirming Hiler’s conviction on direct

appeal, this court noted that his act of stabbing Sparks was undisputed. The only real

question was whether he acted in self-defense. Id. at ¶ 37. On this issue, we noted that

Hiler’s actions were inconsistent with self-defense. His nephew testified that Hiler was

pursuing Sparks. Id. at ¶ 30. In addition, Hiler went home after the stabbing and cleaned

himself off, placed his bloody clothes in the washing machine, discarded his knife, and

never mentioned to police that he had been attacked. In fact, when police later contacted

Hiler, he denied any physical confrontation with Sparks. Hiler also testified at trial that

Sparks struck him more than a dozen times, but he (Hiler) exhibited little or no signs of

bruising or other injury. Id. at ¶ 31. On the record before us, I see no reasonable probability

that the jury’s verdict would have been different if defense counsel had been able to elicit

that Sparks had a 2002 conviction for the non-violent offense of forgery, assuming

arguendo that the prosecutor did fail to disclose it.4


3 In Johnston, the Ohio Supreme Court recognized that a trial court has discretion to
overrule, on the basis of untimeliness under Crim.R. 33, a new-trial motion alleging
prosecutorial misconduct in not disclosing evidence. Johnston, at 58-59. If the merits of
such a motion are reached, however, the traditional test under Crim.R. 33 does not fully
apply. When a new-trial motion alleges a Brady violation based on withholding evidence
favorable to the accused, a due-process analysis applies rather than the usual standards
governing a new trial. Id. at 60. Therefore, a defendant must establish only a “reasonable
probability” that the result would have been different if the evidence had been disclosed.
Id. This is a less stringent standard than typically used under Crim.R. 33. Id.
4 Parenthetically, as a practical matter, granting Hiler a new trial could be a pointless
victory for him. Under Evid.R. 609(A)(3), “evidence that any witness * * * has been
convicted of a crime is admissible if the crime involved dishonesty or false statement,
                                                                                       -11-




                                        .............



Copies mailed to:

Mathias H. Heck
Alice Peters
Richard Lee Hiler
Hon. Steven K. Dankof




regardless of the punishment[.]” Sparks’ forgery conviction involved dishonesty and,
therefore, ordinarily would be admissible. A time limit exists, however, under Evid.R.
609(B), which provides: “Evidence of a conviction under this rule is not admissible if a
period of more than ten years has elapsed since the date of the conviction or of the
release of the witness from the confinement, or the termination of community control
sanctions, post-release control, or probation, shock probation, parole, or shock parole
imposed for that conviction, whichever is the later date, unless the court determines, in
the interests of justice, that the probative value of the conviction supported by specific
facts and circumstances substantially outweighs its prejudicial effect.”

Here Sparks was convicted in 2002. His community control was terminated in February
2005, which was within 10 years of Hiler’s January 2013 trial. If Hiler were granted a new
trial, however, it now would occur more than 12 years after the termination of Sparks’
community control for his forgery conviction. Although a trial court may admit such a
“stale” conviction if the predicate findings are made, “[t]he admission of evidence under
Evid.R. 609(B) should be reserved for the rare and exceptional case[.]” State v. Sferro,
9th Dist. Medina No. 15CA0035-M, 2016-Ohio-7257, ¶ 5. Therefore, a possibility exists
that any new trial Hiler might receive would not include evidence of Sparks’ prior
conviction.
