[Cite as State v. Horton, 2019-Ohio-625.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon.W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
ROBERT D. HORTON, SR.                        :       Case No. CT2018-0066
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. CR2015-0184




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    February 19, 2019




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

TAYLOR P. BENNINGTON                                 ROBERT D. HORTON SR., PRO SE
27 North Fifth Street                                #A719-622
P.O. Box 189                                         Noble Correctional Institution
Zanesville, OH 43702-0189                            15708 McConnelsville Road
                                                     Caldwell, OH 43724-9678
Muskingum County, Case No. CT2018-0066                                                      2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Robert D. Horton, Sr., appeals the October 5, 2018

judgment entry of the Court of Common Pleas of Muskingum 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 June 3, 2015, the Muskingum County Grand Jury indicted appellant on

two counts of trafficking in cocaine in the first degree in violation of R.C. 2925.03. On

August 18, 2015, appellant pled no contest to one count of trafficking in cocaine in the

first degree and one count of trafficking in cocaine in the third degree. The trial court

found appellant guilty by entry filed the next day. By entry filed October 7, 2015, the trial

court sentenced appellant to an aggregate term of five years in prison.

       {¶ 3} Appellant filed an appeal, claiming the state failed to establish that the

weight of actual cocaine met the requisite statutory threshold after excluding the weight

of filler materials used in the mixture. This court affirmed appellant's convictions and

sentence. State v. Horton, Sr., 5th Dist. Muskingum No. CT2015-0053, 2016-Ohio-8193.

       {¶ 4} On August 17, 2016, appellant filed a petition to vacate or set aside

judgment of conviction and sentence, claiming ineffective assistance of trial counsel.

Appellant alleged he entered no contest pleas on the advice of counsel, but he should

not have because the detective in the case had broken the chain of custody and tampered

with and substituted the evidence prior to it being submitted for testing. By entry filed

March 16, 2017, the trial court denied the petition. Following a remand by this court for

findings of fact and conclusions of law, the trial court did so on March 27, 2018, finding

appellant did not present any evidence to support his tampering claim. This court affirmed
Muskingum County, Case No. CT2018-0066                                                          3

the trial court's decision. State v. Horton, Sr., 5th Dist. Muskingum No. CT2018-0019,

2018-Ohio-3231.

       {¶ 5} On September 20, 2018, appellant filed a motion for leave to file a motion

for new trial. Appellant claimed his convictions pursuant to his no contest pleas were

based on insufficient evidence, and he had newly discovered evidence related to his

allegation of evidence tampering. By entry filed October 5, 2018, the trial court denied

the motion.

       {¶ 6} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                                I

       {¶ 7} "THE TRIAL COURT ERRED IN DENYING THE MOTION FOR LEAVE TO

FILE A MOTION FOR NEW TRIAL PURSUANT TO APPLYING THE INCORRECT

STANDARD OF REVIEW."

                                               II

       {¶ 8} "IT WAS PREJUDICIAL ERROR TO DENY THE EQUAL OPPORTUNITY

TO PRESENT EVIDENCE UNDERPINNING GROUNDS FOR A NEW TRIAL

PURSUANT [TO] NO CONTEST PLEAS."

                                              I, II

       {¶ 9} In his assignments of error, appellant claims the trial court erred in denying

his motion for leave to file a motion for new trial and erred in denying him the opportunity

to present evidence. We disagree.

       {¶ 10} In his motion to the trial court for leave to file a motion for new trial, appellant

argued his convictions pursuant to his no contest pleas were based on insufficient
Muskingum County, Case No. CT2018-0066                                                 4


evidence, and he had newly discovered evidence related to his allegation of evidence

tampering which the prosecutor had failed to disclose.

       {¶ 11} Crim.R. 33 governs new trial. Subsections (A)(2), (4), and (6) and (B) and

(C) 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:

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

       the state;

              (4) That the verdict is not sustained by sufficient evidence or is

       contrary to law. If the evidence shows the defendant is not guilty of the

       degree of crime for which he was convicted, but guilty of a lesser degree

       thereof, or of a lesser crime included therein, the court may modify the

       verdict or finding accordingly, without granting or ordering a new trial, and

       shall pass sentence on such verdict or finding as modified;

              (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

       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
Muskingum County, Case No. CT2018-0066                                                  5


      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.

             (C) Affidavits Required. The causes enumerated in subsection

      (A)(2) and (3) must be sustained by affidavit showing their truth, and may

      be controverted by affidavit.



      {¶ 12} The trial court found appellant guilty on August 19, 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 September 20, 2018. 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 motion for a new trial and could not have learned of the existence of that
Muskingum County, Case No. CT2018-0066                                                       6


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.

       {¶ 13} In its October 5, 2018 entry denying appellant's motion, the trial court stated

the following:



                 First, the Court finds that the Defendant has failed to file an affidavit

       as required. Further, the Court finds that it is untimely and the Defendant

       has failed to provide how he was unavoidably prevented from discovering

       the alleged new evidence. Moreover, the Defendant has failed to provide

       any such new evidence to support his claim. Additionally, the issue of

       insufficient evidence has previously been addressed and was found to be

       erroneous.



       {¶ 14} Based upon the foregoing, we do not find error in the trial court's decision.

       {¶ 15} In his motion for leave to file a motion for new trial, appellant argued

insufficient evidence to convict him. Appellant pled no contest. During the plea hearing,

the prosecutor stated "the parties stipulate to the facts sufficient for a finding of guilty on

the charges, and submit a stipulated exhibit concerning the scientific testing of the

evidence in this case." August 18, 2015 T. at 4. Defense counsel acknowledged "[t]he
Muskingum County, Case No. CT2018-0066                                                    7

statements made by the prosecutor are correct." Id. Appellant did not produce any proof

to substantiate this claim.

       {¶ 16} Also in his motion, appellant argued newly discovered evidence. Appellant

stated he was not aware of the detective's "questionable conduct" (tampering with the

evidence) until receiving reports from his counsel prior to sentencing, but after pleading

no contest. The report in question was the BCI lab report. Appellant argued he "was

unavoidably prevented from discovering its exculpatory value due to the State of Ohio not

disclosing such in his case." The report was attached to appellant's plea form as State's

Exhibit 1. During the plea hearing, the prosecutor referred to the report attached to the

plea form. August 18, 2015 T. at 4, 11. Clearly, appellant had knowledge of the evidence

prior to the expiration of one hundred twenty days. The evidence in question was not

"newly discovered."

       {¶ 17} Because appellant made allegations of prosecutorial misconduct regarding

the missing report, he was required to file an affidavit pursuant to Crim.R. 33(C) which

the trial court correctly found he failed to do. Appellant did not submit any attachments

to his motion.

       {¶ 18} Upon review, we find the trial court did not err in denying appellant's motion

for leave to file a motion for new trial.
Muskingum County, Case No. CT2018-0066                                        8


      {¶ 19} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Delaney, J. concur.




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