[Cite as State v. Seal, 2017-Ohio-116.]


                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                      HIGHLAND COUNTY

STATE OF OHIO,                                         :

        Plaintiff-Appellee,                            :
                                                                       Case No. 16CA14
        v.                                             :
                                                                       DECISION AND
ARTHUR SEAL,                                           :               JUDGMENT ENTRY

        Defendant-Appellant.                           :               RELEASED 01/09/2017



                                            APPEARANCES:

Arthur Seal, London, Ohio, pro se Appellant.

Anneka P. Collins, Highland County Prosecuting Attorney, and James Roeder, Assistant
Highland County Prosecuting Attorney, Hillsboro, Ohio, for Appellee.



Hoover, J.


        {¶ 1} Defendant-appellant, Arthur Seal, appeals from the judgment entry of the Highland

County Common Pleas Court denying his motion for leave to file a delayed motion for new trial.

For the reasons that follow, we affirm the judgment of the trial court.

                                     I. Facts and Procedural Posture

        {¶ 2} On December 3, 2012, a jury found Seal guilty of: (1) the illegal manufacture of

drugs (methamphetamine), with the additional finding that the offense occurred in the vicinity of

a juvenile; (2) the illegal assembly or possession of chemicals for the manufacture of drugs

(methamphetamine), with the additional finding that the offense occurred in the vicinity of a

juvenile; and (3) endangering children. The trial court sentenced Seal to an aggregate prison term
Highland App. No. 16CA14                                                                                                2


of 14 years for the offenses. This Court affirmed Seal’s convictions in State v. Seal, 2014-Ohio-

4167, 20 N.E.3d 292 (4th Dist.).

         {¶ 3} On April 12, 2013, Seal filed a “motion for exculpatory evidence” pursuant to R.C.

149.43(B)(8) wherein Seal sought the release of a 911 recording for use in a post-conviction

proceeding. Seal argued that the 911 recording was necessary to prove in a post-conviction

proceeding that law enforcement unlawfully searched the property at which he had been staying.1

The trial court denied the motion; and we affirmed the trial court’s denial. See State v. Seal, 4th

Dist. Highland No. 13CA10, 2014-Ohio-4168.

         {¶ 4} On June 14, 2013, Seal filed a pro se petition for post-conviction relief. Seal’s

petition sought an evidentiary hearing and alleged that his convictions were void or voidable due

to alleged constitutional violations. The trial court denied Seal’s petition for post-conviction

relief without evidentiary hearing on June 24, 2013. This Court affirmed the trial court’s denial

in State v. Seal, 4th Dist. Highland No. 13CA15, 2014-Ohio-5415.

         {¶ 5} On July 1, 2013, Seal filed an “amended petition for post-conviction relief” seeking

to amend his earlier petition and to add claims that: (1) the State withheld exculpatory evidence,

specifically the criminal record of the State’s “STAR & ONLY WITNESS”, Mark Ervin, and (2)

that his trial counsel, George William Armintrout, rendered ineffective assistance because he,

among other things, failed to disclose that he had previously represented Ervin in a criminal

matter. Four days later Seal filed a motion to supplement his petition for post-conviction relief,

which he claimed, provided further proof that the State withheld exculpatory evidence relating to

the criminal record of Ervin. The trial court denied the “amended petition” on the ground that the
1
  At trial, Deputy Craig Seaman of the Highland County Sheriff’s Office testified that on June 4, 2012, he was
dispatched to answer a 911 call indicating possible assistance needed at 5094 US Route 50, in Highland County,
Ohio. Seaman testified further that an investigation of the 911 call led to the procurement of a search warrant for a
house and a camper that were located at the address. Upon execution of the search warrant, authorities located an
active methamphetamine lab in the camper. See State v. Seal, 2014-Ohio-4167, 20 N.E.3d 292 (for a full recitation
of the facts).
Highland App. No. 16CA14                                                                             3


original petition had already been denied and, because a final ruling had already been issued, it

could not allow the original petition to be amended. The trial court also denied the motion to

supplement because “the case is now closed.” Seal appealed both of the trial court’s rulings, but

we dismissed the appeals because we concluded that the entries were not final appealable orders.

State v. Seal, 4th Dist. Highland No. 13CA16; State v. Seal, 4th Dist. Highland No. 13CA17.

       {¶ 6} On February 26, 2016, Seal filed a motion for leave to file a delayed motion for

new trial based on newly discovered evidence; which is the subject of the present appeal.

Specifically, Seal argued, like he had in his 2013 filings, that the State failed to disclose

exculpatory evidence regarding Ervin’s criminal record in pre-trial discovery, and that a conflict

of interest existed where his trial counsel, George William Armintrout, had previously

represented Ervin in a criminal matter two years prior to this case. Seal also argued that the State

had withheld exculpatory evidence pertaining to Robert Coburn, the owner of the property where

the methamphetamine lab and materials were found. According to Seal, the newly discovered

evidence tended to show that Ervin and/or Coburn were the individuals cooking

methamphetamine on the date of the incident; that Ervin was not a credible witness; and that the

conflict regarding his trial counsel adversely affected counsel’s performance. On April 22, 2016,

the trial court overruled Seal’s motion for leave to file a delayed motion for new trial without a

hearing.

                                     II. Assignments of Error

       {¶ 7} Seal sets forth the following assignments of error for review:

First Assignment of Error:

       Defendants [sic] was denied due process of law and competent counsel a [sic]
       guaranteed by the 6th and 14th amendments of the U.S. Constitution and Article I
       section 10 of the Ohio Constitution rendering his conviction void.
Second Assignment of Error:
Highland App. No. 16CA14                                                                           4


       Prosecutor suppressing the governments [sic] witness Mark Ervin’s Criminal
       record his no contacts against the appellant, his continuing criminal pattern of
       implicating the appellant, and his avoidance of prosecution. The state violated the
       defendants [sic] constitutional rights pursuant to Article I Section 16 of the Ohio
       Constitution and 5th 14th amendments to the United States constitution a new trial
       is required.
Third Assignment of Error:

       The trial court abuse [sic] its discretion in denying error three. The State withheld
       exculpatory evidence demonstrating Rob Coburn as the perpetrator and would
       have established in possession of Illegal activity. Thus violating the defendants
       [sic] constitution [sic] right to a fair trial pursuant to Article I Section 10 of the
       Ohio Constitution and the 5th, 14th amendment of the U.S. Constitution.


                                       III. Law and Analysis


       {¶ 8} Because Seal’s assignments of error are interrelated, we will consider them jointly.

In his assignments of error, Seal contends that the trial court erred by denying his motion for

leave to file a delayed motion for new trial. He argues that the State violated his due process

rights by withholding material, exculpatory evidence from him during his trial. He further argues

that he was denied the right to competent legal counsel because his trial counsel had previously

represented one of the State’s witnesses at trial.

       {¶ 9} “An appellate court applies an abuse of discretion standard in reviewing a trial

court’s denial of a motion for leave to file a delayed motion for new trial.” State v. Hoover-

Moore, 2015-Ohio-4863, 50 N.E.3d 1010, ¶ 14 (10th Dist.). Likewise, an appellate court applies

an abuse of discretion standard of review to (1) a trial court’s decision whether to conduct an

evidentiary hearing on a motion for leave to file a delayed motion for new trial; and (2) its

ultimate decision to grant or deny the underlying motion for new trial. Id.; State v. Jones, 9th

Dist. Summit No. 26568, 2013-Ohio-2986, ¶ 8. An abuse of discretion implies the trial court’s

decision is arbitrary, unconscionable, or unreasonable. State v. Minton, 4th Dist. Adams No.
Highland App. No. 16CA14                                                                            5


15CA1006, 2016-Ohio-5427, ¶ 19.

       {¶ 10} Crim.R. 33(A) allows a defendant to move for a new trial “[w]hen new evidence

material to the defense is discovered which the defendant could not with reasonable diligence

have discovered and produced at the trial.” Crim.R. 33(A)(6). A motion for a new trial must be

filed within 14 days after the verdict is rendered, “except for the cause of newly discovered

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

filed within 120 days after the day the verdict was rendered, unless the defendant shows by

“clear and convincing proof that [he] was unavoidably prevented from the discovery of the

evidence upon which he must rely * * *”. Id. “A party is ‘unavoidably prevented’ from filing a

motion for a new trial if the party had no knowledge of the existence of the ground supporting

the motion and could not have learned of that existence within the time prescribed for filing the

motion in the exercise of reasonable diligence.” Hoover-Moore at ¶ 13, citing State v. Berry,

10th Dist. Franklin No. 06AP-803, 2007-Ohio-2244, ¶ 19. “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.” Crim.R. 33(B).

       {¶ 11} “Because [Seal] did not file [his] motion for a new trial based on newly

discovered evidence within 120 days of the jury’s verdict, [he] correctly sought leave from the

trial court to file a delayed motion.” Hoover-Moore at ¶ 13, citing Berry at ¶ 19. However, the

trial court denied Seal’s motion for leave but did not address whether Seal was unavoidably

prevented from discovering the evidence he relied on in his motion. Instead, the trial court

addressed and rejected Seal’s arguments for a new trial on the merits. “Although a defendant
Highland App. No. 16CA14                                                                              6


may file his motion for a new trial along with his request for leave to file such a motion, the trial

court may not consider the merits of the motion for a new trial until it makes a finding of

unavoidable delay.” (Internal quotations and citations omitted.) State v. Covender, 2012-Ohio-

6105, 988 N.E.2d 582, ¶ 13 (9th Dist.). Thus, the trial court erred by collectively entering

judgment on Seal’s motions. Nonetheless, we find that the trial court’s error in collectively

entering judgment on the motions is harmless.

       {¶ 12} Ohio courts have determined that a defendant is required to file his or her motion

for leave to file a delayed motion for new trial within a reasonable time after he or she discovers

the evidence. State v. Griffith, 11th Dist. Trumbull No. 2005-T-0038, 2006-Ohio-2935, ¶ 15;

State v. Cleveland, 9th Dist. Lorain No. 08CA009406, 2009-Ohio-397, ¶ 49. In State v.

Stansberry, 8th Dist. Cuyahoga No. 71004, 1997 WL 626063, *3 (Oct. 9, 1997), the Eighth

Appellate District stated:

       A trial court must first determine if a defendant has met his burden of establishing

       by clear and convincing proof that he was unavoidably prevented from filing his

       motion for a new trial within the statutory time limits. If that burden has been met

       but there has been an undue delay in filing the motion after the evidence was

       discovered, the trial court must determine if that delay was reasonable under the

       circumstances or that the defendant has adequately explained the reason for the

       delay.

Furthermore, the Second Appellate District has explained:

       Although Crim.R. 33(B) is silent regarding a time limit for the filing of a motion

       for leave to file a delayed motion for new trial, the application of Crim.R. 33(B)

       must be undertaken against the backdrop of Crim.R. 1(B), which states:
Highland App. No. 16CA14                                                                          7


               These rules are intended to provide for the just determination of

               every criminal proceeding. They shall be construed and applied to

               secure the fair, impartial, speedy, and sure administration of

               justice, simplicity in procedure, and the elimination of unjustifiable

               expense and delay.

       Further, Crim.R. 57(B) states that “[i]f no procedure is specifically prescribed by

       rule, the court may proceed in any lawful manner not inconsistent with [the] rules

       of criminal procedure[.]”

       In light of the purpose and construction of the criminal rules, a trial court may

       require a defendant to file his motion for leave to file a motion for new trial within

       a reasonable time after he discovers new evidence. Allowing the defendant to file

       a motion [for] leave [to file] a motion for a new trial at any time would frustrate

       the overall objective of the criminal rules in providing the speedy and sure

       administration of justice, simplicity in procedure, and the elimination of

       unjustifiable delay.

(Emphasis sic.) (Citations and quotations omitted.) State v. York, 2d Dist. Greene No.

2000CA70, 2001 WL 332019, *3-4 (Apr. 6, 2001).

       {¶ 13} Here, Seal was aware of the existence of the grounds supporting his delayed

motion for new trial since 2013, but did not file his motion for leave until February 2016. For

instance, Seal first raised the issue concerning Robert Coburn’s alleged involvement in the

committed offenses in his petition for post-conviction relief filed on June 14, 2013. See OP 50, p.

38 (“While the officers searched the homeowners room, Coburn, the officers found two (2) jars

containing clear liquid in them; stacks of coffee filters; a container of DAMP RID and rubber
Highland App. No. 16CA14                                                                              8


gloves; receipts of purchases of sudafed pills and lithium batteries. All these items are highly

consistent with the manufacturing of meth.”) Furthermore, Seal first raised the arguments

concerning the alleged conflict of his trial counsel and the withholding of Ervin’s criminal record

in his amended petition for post-conviction relief filed on July 1, 2013. Thus, Seal knew of these

arguments for more than two and a half years before filing his motion for leave to file a delayed

motion for new trial. This is an unreasonable delay for which Seal has offered no explanation.

       {¶ 14} Presumably, Seal delayed in filing the motion so that he could build a stronger

case. This is presumed because Seal’s latest motion is supported by documents that were not

attached to his 2013 filings, or in some instances, were not available in 2013. However, “Crim.R.

33(B) does not allow a defendant to wait for further evidence to arise that will bolster his case.”

Berry, 2007-Ohio-2244, at ¶ 39, citing Stansberry at *3.

                                          IV. Conclusion

       {¶ 15} Based on the foregoing, we conclude that the trial court properly denied Seal’s

motion for leave to file a delayed motion for new trial. Even if we were to assume, arguendo,

that Seal was unavoidably prevented from filing his motion for a new trial within the statutory

time limits, Seal, nonetheless, unreasonably delayed filing his motion for more than two and a

half years after he discovered the grounds upon which it is based. Accordingly, all three of Seal’s

assignments of error are overruled, and the judgment of the trial court is affirmed.

                                                                        JUDGMENT AFFIRMED.
Highland App. No. 16CA14                                                                              9


                                      JUDGMENT ENTRY


         It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the 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 Highland County
Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in that court. If a stay is continued
by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the
failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-
five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration
of sixty days, the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Harsha, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.


                                                             For the Court

                                                             By:
                                                                   Marie Hoover, Judge


                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
