[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.




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