[Cite as State v. Hill, 2020-Ohio-4050.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO,                                :       JUDGES:
                                              :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                  :       Hon. Patricia A. Delaney, J.
                                              :       Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
FREDERICK M. HILL                             :       Case No. 2020CA00019
                                              :
        Defendant - Appellant                 :       OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Stark County Court
                                                      of Common Pleas, Case No. 2017-
                                                      CR-0700



JUDGMENT:                                             Affirmed



DATE OF JUDGMENT:                                     August 11, 2020



APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

JOHN D. FERRERO                                       FREDERICK M. HILL, Pro se
Prosecuting Attorney                                  P.I.N. A-701-883
Stark County, Ohio                                    Richland Correctional Inst.
                                                      1001 Olivesburg Road
By: KATHLEEN O. TATARSKY                              P.O. Box 8017
Assistant Prosecuting Attorney                        Mansfield, Ohio 44901-8107
Appellate Section
110 Central Plaza, South –Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2020CA00019                                                    2



Baldwin, J.

       {¶1}   Appellant, Frederick M. Hill, appeals the Stark County Common Pleas

Court's denial of his motion for leave to file a motion for a new trial. Appellee is the State

of Ohio.

                       STATEMENT OF FACTS AND THE CASE

       {¶2}   Hill previously appealed his August 31, 2017 conviction to this court and to

the Supreme Court of Ohio. As a result one of the charges was dismissed by appellee,

but the balance of the verdict was confirmed. Hill now contends that he has acquired

evidence that will have a material impact on his case. The evidence, three photographs

and a police officer’s affidavit, were purportedly acquired by Hill in January 2019 from his

trial counsel. Hill contends that this evidence will demonstrate that the search warrant for

the warehouse containing the marijuana farm should have been suppressed and that any

conviction based upon that evidence must be reversed.

       {¶3}   In 2017, the Stark County Grand Jury indicted Hill on one count (Count One)

of felonious assault in violation of R.C. 2903.11(A)(2), a felony of the first degree, one

count (Count Two) of possession of marijuana in violation of R.C. 2925.11(A)(C)(3)(g), a

felony of the second degree, one count (Count Three) of illegal cultivation of marijuana in

violation of R.C. 2925.04(A)(C)(5)(f), a felony of the second degree, one count (Count

Four) of trafficking in marijuana in violation of R.C. 2925.03(A)(2)(C)(3)(g), a felony of the

second degree, one count (Count Five) of discharge of a firearm on or near prohibited

premises in violation of R.C. 2923.162(A)(3)(C)(2), a felony of the third degree, and one

count (Count Six) of improperly handling firearms in a motor vehicle in violation of R.C.

2923.16(A) and/or (B), a felony of the fourth degree. The felonious assault count included
Stark County, Case No. 2020CA00019                                                      3


a firearm specification pursuant to R.C. 2941.145, a discharging a firearm from a motor

vehicle specification pursuant to R.C. 2941.146 and a firearm specification pursuant to

R.C. 2941.1412, which prohibits discharging a firearm at a peace officer or corrections

officer. At his arraignment on April 28, 2017, Hill entered a plea of not guilty to the charges.

       {¶4}   Hill's case was presented to a jury beginning August 29, 2017.                  A

comprehensive review of the evidence is unnecessary, but some references are

pertinent.

       {¶5}   On March 20, 2017, Detective Jesse Gambs of the Canton Police

Department's Special Investigations Unit was assigned to investigate a possible

marijuana grow operation located in a commercial warehouse at 1805 Allen Avenue SE

in Canton, Ohio. He began his investigation by obtaining the electric records for that

address for the past two years and he discovered the electric bill was in the name of Price

is Right Auto Sales, LLC which was registered in appellant’s name. Detective Gambs next

obtained a search warrant for thermal imaging of the building but the result was

inconclusive, so he and another detective decided to attempt what Gambs described as

“knock and talk.” The detectives planned to knock on the warehouse doors and talk with

whoever answered with the goal of gathering relevant evidence. They approached the

building and knocked on two doors but no one answered. Detective Gambs noticed an

odor of growing marijuana while he was at the door. The Detective completed an affidavit

for a warrant, including a reference to the odor of marijuana, then returned to the scene

and executed the warrant, leading to the discovery of what appeared to be a marijuana

growing operation and, ultimately, the arrest of Hill.
Stark County, Case No. 2020CA00019                                                     4


       {¶6}   The record contains references to a fence and gate in the vicinity of the

warehouse, a relevant fact in our analysis of the trial court’s denial of Hill’s motion for

leave During the trial, Hill mentioned opening the gate in the fence and Officer Gambs

described a gate across the driveway to the warehouse and made several references to

the fence.

       {¶7}   On August 31, 2017 the jury found Hill guilty of all of the counts and

specifications except Count Four, trafficking marijuana. The jury was unable to reach a

verdict, the trial court declared a mistrial as to that count and a nolle prosequi was entered.

On September 20, 2017 Hill was sentenced to a total prison term of 27 years.

       {¶8}   Hill filed a direct appeal of his conviction and sentence. We overruled Hill's

assignments of error and affirmed Hill's conviction and sentence. State v. Hill, 5th Dist.

Stark No. 2017CA00183, 2018-Ohio-3901, ¶ 30 motion for delayed appeal granted, 154

Ohio St.3d 1499, 2019-Ohio-345, 116 N.E.3d 153, (2019) appeal not allowed,155 Ohio

St.3d 1455, 2019-Ohio-1759, 122 N.E.3d 216.

       {¶9}   On December 10, 2018, Hill filed a “motion requesting final appealable

order" arguing the sentencing entry did not comply with Criminal Rule 32(C) because it

did not contain the signature of the trial judge. The trial court denied Hill's motion and he

filed an appeal, pro se, with this court. We denied the assignment of error and affirmed

the trial court's decision on April 29, 2019. State v. Hill, 5th Dist. Stark No. 2019CA00005,

2019-Ohio-1606, appeal not allowed, 156 Ohio St.3d 1477, 2019-Ohio-3148, 128 N.E. 3d

235 (2019).
Stark County, Case No. 2020CA00019                                                     5


         {¶10} Hill filed a motion to re-open his direct appeal and focused his attack on the

charge of improperly handling a firearm in a vehicle.            That charge was ultimately

dismissed.

         {¶11} Hill next filed a "Motion for Leave to File Delayed Motion for New Trial

Pursuant to Ohio Criminal Rule 33 (B)" in which he requested leave because:

                The documents received on or about on or about January 10, 2019,

         were the first time Hill was aware that trial counsel possessed documents

         that that could be used to challenge the search warrant. Moreover, as more

         fully argued in the Motion for New Trial pursuant to Crim.R. 33(A), the new

         information shows that the "knock and talk" method used to obtain the

         search warrant was illegal and subject to suppression. Thus, not only was

         counsel ineffective for abandoning the motion to suppress, counsel was

         equally ineffective in failing to make that information part of the record.

         {¶12} Appellee opposed the motion arguing that it was untimely, was an attempt

to impeach a witness and would not change the outcome of the trial. The trial court denied

the motion concluding that Hill had not demonstrated how or why he was unavoidably

prevented from the discovery of the "newly discovered" evidence within the time

limitations of Crim.R. 33. “The trial court also found that "[t]he Defendant has not provided

evidence in support of his motion which would require the Court to set an evidentiary

hearing in this matter.” (Judgment Entry Dec. 23, 2019, pp. 2-3).

         {¶13} Hill appealed the trial court's decision and submitted two assignments of

error:
Stark County, Case No. 2020CA00019                                                      6


       {¶14} “I. THE TRIAL COURT               ABUSED ITS DISCRETION WHEN IT

DETERMINED THAT TRIAL COUNSEL'S FAILURE TO USE AVAILABLE EVIDENCE

TO CHALLENGE THE MANNER IN WHICH LAW ENFORCEMENT OBTAINED THE

SEARCH WARRANT             IN   VIOLATION       OF    THE    SIXTH     AND     FOURTEENTH

AMENDMENT TO THE UNITED STATES                    CONSTITUTION, DID NOT CREATE A

STRONG PROBABILITY OF A DIFFERENT OUTCOME WERE A NEW TRIAL TO BE

GRANTED.”

       {¶15} “II. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

APPELLATE COUNSEL, IN VIOLATION OF THE SIXTH AND FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION, WHEN COUNSEL FAILED

TO INFORM HIS CLIENT OF THE POTENTIAL POST-CONVICTION ISSUES IN HIS

CASE OR THE MANDATORY PROCEDURES INVOLVED WITH SUCH PLEADINGS.”

       {¶16} We must preliminarily find that Hill’s assignments of error focus upon issues

that were not properly before the trial court. The trial court denied Hill’s motion for leave

to file a motion for new trial. While we recognize the trial court did comment on the merits

of the motion and the likelihood of a different outcome if a new trial was granted, we will

not consider that portion of the trial court’s entry as pertinent to the disposal of this appeal

as those comments were unnecessary to resolve the motion for leave to file a motion for

a new trial. That portion of the opinion may have been relevant in the context of reviewing

a motion for a new trial, but because such a motion was not before the trial court we will

disregard them in our analysis.
Stark County, Case No. 2020CA00019                                                    7


                                 STANDARD OF REVIEW

       {¶17} A motion for a new trial pursuant to Crim.R. 33 is addressed to the sound

discretion of the trial court. State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990). It

is also within the discretion of the trial court to determine whether a motion for a new trial

and the material submitted with the motion warrants an evidentiary hearing. State v. Hill,

64 Ohio St.3d 313, 333, 1992–Ohio–43, 595 N.E.2d 884 (1992). To constitute an abuse

of discretion, a trial court's decision must be unreasonable, unconscionable, or arbitrary.

State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

       {¶18} Crim.R. 33(B) provides that a motion for new trial based on newly

discovered evidence must be filed:

              [W]ithin one hundred twenty days after the day upon which the

       verdict was rendered. 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.

       {¶19} The verdict in Hill's case was rendered on August 31, 2017 but his motion

was not filed until November 22, 2019. “Because appellant's motion was filed well outside

the 120–day period, he was required to obtain leave of court to file his motion for new

trial.” State v. Waddy, 10th Dist. No. 15AP–397, 2016–Ohio–4911, 68 N.E.3d 381, appeal

not allowed, 149 Ohio St.3d 1462, 2017–Ohio–5699, 77 N.E.3d 987 (2017), and cert.

denied, U.S. No. 17–71452018 WL 1037605, quoting State v. Hoover–Moore, 10th Dist.

Franklin No. 2015–Ohio–4863, 14AP–104, ¶ 13. “To obtain such leave, the defendant
Stark County, Case No. 2020CA00019                                                      8


must demonstrate by clear and convincing proof that he or she was unavoidably

prevented from discovering the evidence within the 120 days.” 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.” Id., quoting State v. Walden, 19 Ohio App.3d 141, 145–146, 483 N.E.2d 859

(10th Dist.1984).

       {¶20} Appellant's proof must be more than conclusory allegations. “Clear and

convincing proof that the defendant was ‘unavoidably prevented’ from filing ‘requires more

than a mere allegation that a defendant has been unavoidably prevented from discovering

the evidence he seeks to introduce as support for a new trial.’ ” State v. Lee, 10th Dist.

Franklin No. 05AP–229, 2005–Ohio–6374, 2005 WL 3220245, ¶ 9. The requirement of

clear and convincing evidence puts the burden on the defendant to prove he was

unavoidably prevented from discovering the evidence in a timely manner. State v.

Rodriguez—Baron, 7th Dist. Mahoning No. 12–MA–44, 2012–Ohio–5360, 2012 WL

5863613, ¶ 11. Clear and convincing proof is that “which will produce in the mind of the

trier of facts a firm belief of conviction as to the facts sought to be established.” Schniebel,

supra at 74.

       {¶21} The “unavoidably prevented” requirement in Crim.R. 33 mirrors the

“unavoidably prevented” requirement in R.C. 2953.23.              “The phrase ‘unavoidably

prevented’ in R.C. 2953.23(A)(1)(a) means that a defendant was unaware of those facts

and was unable to learn of them through reasonable diligence.” Id. at ¶ 28, citing State v.
Stark County, Case No. 2020CA00019                                                    9


Howard, 10th Dist. Franklin No. 15AP–161, 2016–Ohio–504, appeal not allowed, 147

Ohio St.3d 1413, 2016–Ohio–7455, 62 N.E.3d 185.

       {¶22} Thus, the central inquiry in Hill’s motion for leave to file a motion for a new

trial is whether he was unaware of the facts disclosed by the new evidence and whether

he was unavoidably prevented from obtaining that information through reasonable

diligence.

                                        ANALYSIS

       {¶23} Hill contends the newly discovered evidence he relies upon is comprised of

three photographs and the affidavit Officer Gambs’ submitted to the court for the warrant

after the "knock and talk" visit to the warehouse. Hill contends that he did not discover

these documents until he received them in January 2019 purportedly because they were

in the possession of his trial counsel and that this evidence reveals that the warrant to

search the premises was improperly obtained. Hill's motion suffers from two different

delinquencies.

       {¶24} Hill concedes that he received the materials in January 2019, but he failed

to explain to the trial court why he did not file a motion until November, approximately ten

months later. A “‘trial court may require a defendant to file his motion for leave to file

within a reasonable time after he discovers the evidence.’ (Citations omitted.) State v.

Golden, 10th Dist. Franklin No. 09AP-1004, 2010-Ohio-4438, ¶ 18. As observed by the

Seventh District Court of Appeals: “While Crim.R. 33(B) does not provide a specific time

limit in which defendants must file a motion for leave to file a delayed motion for new trial,

many courts have required defendants to file such a motion within a reasonable time after

discovering the evidence. State v. Griffith, 11th Dist. No.2005–T–0038, 2006–Ohio–2935,
Stark County, Case No. 2020CA00019                                                      10


¶ 15. See also State v. Berry, 10th Dist. No. 06AP–803, 2007–Ohio–2244, ¶ 37; State v.

Willis, 6th Dist. No. L–06–1244, 2007–Ohio–3959, ¶ 20; State v. Newell, 8th Dist. No.

84525, 2004–Ohio–6917, ¶ 16; State v. Stansberry, 8th Dist. No. 71004, 1997 WL 626063

(Oct. 9, 1997).

       {¶25} We find that Hill's failure to provide the trial court with the rational for his

delay in filing his motion for leave provided a basis for the denial of the motion, but a

second material reason exists for the denial of the motion.

       {¶26} The newly discovered evidence Hill relies upon in support of his motion was

readily available to him and could have been obtained with reasonable diligence. Hill

claims that the photographs and the affidavit of the officer are the newly discovered

evidence, but the facts purportedly discovered by appellant are not the photographs, but

the photographic view of the fence allegedly surrounding the warehouse in which the

marijuana was grown. Hill rented the building and presumably was aware of the presence

of the gate in the fence blocking the driveway when he visited the building. Though the

photographs may memorialize the condition of the fence at the time they were taken, the

view that they provide would have been readily available to Hill and his counsel from the

date of his arrest.

       {¶27} Hill has failed to provide any evidence to support a conclusion that he was

unavoidably prevented from discovering the position of the fence.

       {¶28} Likewise, the affidavit of Officer Gambs provides nothing that was not

available for Hill’s consideration at his trial. Hill contends Officer Gambs’ affidavit is newly

discovered evidence that the officer approached the warehouse from the rear when, Hill

contends, the warehouse is surrounded by a fence.             Whether the warehouse was
Stark County, Case No. 2020CA00019                                                   11


surrounded by a fence is a fact that Hill knew or could have discovered had he exercised

reasonable diligence. Officer Gambs did testify that he approached the building and

knocked on a door. Given that evidence, the facts Hill references to support his argument

that Officer Gambs could not have approached the building without scaling the fence or

otherwise passing through it were discoverable using reasonable diligence and Hill was

not unavoidably prevented from acquiring this information.

       {¶29} Prior to his purported receipt of the affidavit and photographs Hill filed a

motion that reveals his prior knowledge of the facts that he now claims were disclosed by

the newly discovered evidence. Hill filed a motion to reopen his appeal on December 10,

2018 in which he argued that "an illegal entrance was made to the property on April 12,

2017, and an illegally obtained search warrant was used to search the building.” In this

motion he argues "The triggering event of Fourth Amendment analysis in this case is the

officers' entry upon the "perimeter" of appellant's property and subsequent progress

through the north side of the fence, around the fence which was not open to the public to

the rear of the property, allowing them access to the door where an alleged smell of

marijuana was present."

       {¶30} Within the affidavit Hill filed in support of the motion to reopen his appeal he

states "detective Gambs takes it upon himself to commit the illegal crossings of property

with a fenced in area and thus, curtilage in the form of a chain-linked fence that was

locked and surrounded three quarters of the property. The only opening was at the far

back of the property where the property was placed against a set of railroad tracks." He

repeats the argument later in his affidavit:
Stark County, Case No. 2020CA00019                                                   12


             For detective Gambs to get to a door at the warehouse he had to

      walk around the northwest fence and walk across the yard which was

      approximately 150 feet from the fence line, which did not contain no (sic)

      public access to the front door because of the fence being locked. This was

      in fact a secured, private place that was not open for business, had no one

      in or on the property to allow access to any door of the warehouse, and for

      all intentional purposes, contained a curtilage.

             When detective Gambs arrived at the location of the warehouse to

      conduct his "knock and talk", he was only able to perform such and (sic) act

      by entering onto the curtilage of Appellant's property by going around to the

      back of the property and into the back yard which violated Appellant's United

      States Constitution as protected under the Fourth Amendment because the

      detective and other officers did not have a search warrant at that time and

      the Appellant had a legitimate expectation of privacy there, and detective

      Gambs was not lawfully in a place from which he could have smelled any

      marijuana.

      {¶31} The position of the fence in relation to the warehouse and the officer's

alleged illegal approach are facts that existed and were known or discoverable by Hill and

his counsel from the date of his arrest and were not, in any sense, newly discovered when

Hill obtained the photographs and the affidavit. Hill had knowledge of the existence of the

grounds supporting the motion for a new trial well in advance of the time prescribed for

filing the motion. State v. Walden, supra. Hill's prior filing with this court betrays his

knowledge of these facts before he received the photographs and affidavit and is fatal to
Stark County, Case No. 2020CA00019                                                  13


any argument that Hill was unavoidably prevented from obtaining this information until

January 2019 or that these facts were not available for presentation to the court at an

earlier date.

       {¶32} The trial court also concluded that no hearing was required because

“[d]efendant has not provided evidence in support of his motion which would require the

Court to set an evidentiary hearing in this matter. Accordingly, he is not entitled to a

hearing on this motion.” We agree that “[n]o hearing is required, and leave may be

summarily denied, where neither the motion nor its supporting affidavits embody prima

facie evidence of unavoidable delay. State v. Baldwin, 5th Dist. Stark No. 2013CA00134,

2014–Ohio–290, ¶ 24. Affidavits filed outside of the 120–day time limit of Crim. R. 33 that

fail to offer a sufficient explanation as to why evidence could not have been obtained

sooner are inadequate to show that the movant was unavoidably prevented from

obtaining the evidence within the prescribed time. Ambartsoumov v. Warden, Chillicothe

Correctional Inst., S.D.Ohio No. 2:12–CV–345, 2014 WL 4805384, *7, internal citations

omitted. We find that the record reflects that Hill could have discovered the foundation of

his motion early in this case and his motion and affidavit do not demonstrate a sufficient

explanation as to why these facts could not have been discovered sooner.
Stark County, Case No. 2020CA00019                                                14


      {¶33} We hold that the trial court’s denial of the motion for leave to file a motion

for a new trial and the refusal to conduct a hearing were not an abuse of discretion.

Appellant’s assignments of error are denied and the ruling of the Stark County Court of

Common Pleas is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.
