[Cite as State v. Maurent, 2018-Ohio-5304.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee   :       Hon. Earle E. Wise, J
                                              :
-vs-                                          :
                                              :       Case No. 18CAA070053
FELIX A. MAURENT                              :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Delaware County
                                                  Court of Common Pleas, Case No. 12CR-I-
                                                  02-0063

JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                           December 26, 2018




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

DELAWARE COUNTY PROSECUTOR                        FELIX A. MAURANT PRO SE
BY: KYLE E. ROHRER                                TRUMBULL CORRECTIONAL
P.O. BOX 8006                                     INSTITUTION
DELAWARE, OH 43015                                BOX 901
                                                  LEAVITTSBURG, OH 44430-0901
[Cite as State v. Maurent, 2018-Ohio-5304.]


Gwin, P.J.

         {¶1}   Appellant Felix A. Maurent appeals from the decisions of the Delaware

County Court of Common Pleas overruling his motion for leave to file a motion for a new

trial.

                                         Facts and Procedural History

         {¶2}   Maurent was found guilty after a jury trial and sentenced on Count 1

(aggravated burglary), 8 years plus 3 years for the firearm specification; Counts 2

(aggravated burglary) and 3 (kidnapping) merged with Count 1 and no sentence was

imposed; Count 4 (kidnapping), 3 years; Counts 5 (kidnapping) and 6 (kidnapping)

merged with Count 4 and no sentence was imposed; Count 13 (extortion), 24 months;

Count 14, extortion, 12 months, and Count 15, extortion, 12 months. The trial court

specified the terms as to Counts 4 and 13 are to be served concurrently; the terms as to

Counts 14 and 15 are to be served consecutively.

         {¶3}   This Court upheld Maurent’s convictions and sentences. State v. Maurent,

5th Dist. Delaware No. 12 CAA 05 0055, 2013-Ohio-3799. The Ohio Supreme Court

decline to review Maurent’s case. State v. Maurent, 137 Ohio St.3d 1473, 2014-176, 2

N.E.3d 269, reconsideration denied, 138 Ohio St.3d 1452, 2014-Ohio-1182, 5 N.E.3d

668. Maurent’s petition for habeas corpus was denied. Maurent v. Ross Correctional

Institution, 6th Cir. No. 2:14-CV-2296, 2016 WL 1436680 (Apr. 11, 2016), reconsideration

denied, 6th Cir. No. 2:14-CV-2296, 2016WL2853586 ((May 16, 2016). Maurent’s Motion

for a Certificate of Appealability was denied. Maurent v. Ross Correctional Institution,

S.D.Ohio No. 2:14-CV-2296, 2016 WL 3148636(June 3, 2016), appeal denied, Maurent

v. Hooks, 6th Cir. No. 16-3580, 2017 WL 5952266(Apr. 25, 2017).
Delaware County, Case No. 18CAA070053                                                    3


        {¶4}   On May 17, 2018, Maurent filed a motion for leave to file a motion for a new

trial. The trial court denied the motion without hearing by Judgement Entry filed June 19,

2018.

                                       Assignments of Error

        {¶5}   Maurent raises two assignments of error,

        {¶6}   “I. THE TRIAL COURT ERRED IN DENYING MAURENT'S MOTION FOR

LEAVE TO FILE MOTION FOR NEW TRIAL, IN VIOLATION OF HIS DUE PROCESS

PROTECTIONS           UNDER    THE     FOURTEENTH         AMENDMENT        TO    THE   U.S.

CONSTITUTION AND ARTICLE I, SECTION § 10 OF THE OHIO CONSTITUTION.

        {¶7}   “II.   THE TRIAL COURT ERRED IN NOT HOLDING A HEARING ON

MAURENT'S MOTION FOR LEAVE TO FILE MOTION FOR NEW TRIAL, IN VIOLATION

OF HIS DUE PROCESS PROTECTIONS UNDER THE FOURTEENTH AMENDMENT

TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION § 10 OF THE OHIO

CONSTITUTION.”

                                               I. & II.

        {¶8}   Maurent contends in his two assignments of error that the trial court erred

in denying his motion for leave to file a motion for a new trial without a hearing.

        Standard of Appellate Review.

        {¶9}   Crim.R. 33 governs new trials.       Subsections (A)(6) and (B) state the

following:

               A new trial may be granted on motion of the defendant for any of the

        following causes affecting materially his substantial rights:
Delaware County, Case No. 18CAA070053                                                4


             (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

      circumstances of the case.       The prosecuting attorney may produce

      affidavits or other evidence to impeach the affidavits of such witnesses.

                                          ***

             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.

      {¶10} The Ohio Supreme Court has set forth the following requirements

concerning motions for a new trial based upon newly discovered evidence:

             To warrant the granting of a motion for a new trial on the ground of

      newly discovered evidence, it must be shown that the new evidence (1)
Delaware County, Case No. 18CAA070053                                                       5


       discloses a strong probability that it will change the result of a new trial if

       granted; (2) has been discovered since the trial; (3) is such as could not in

       the exercise of due diligence have been discovered before the trial; (4) is

       material to the issues; (5) is not merely cumulative to former evidence; and

       (6) does not merely impeach or contradict the former evidence.

State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370(1947), syllabus. Accord, State v.

Hawkins, 66 Ohio St.3d 339, 350, 612 N.E.2d 1227(1993), syllabus; State v. LaMar, 95

Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶85.

       {¶11} The decision whether to grant a new trial on grounds of newly discovered

evidence falls within the sound discretion of the trial court. State v. Hawkins, 66 Ohio

St.3d at 350, 612 N.E.2d 1227. We cannot reverse unless there has been a gross abuse

of that discretion, and whether that discretion has been abused must be disclosed from

the entire record. State v. Petro, 148 Ohio St. at 507- 508, 76 N.E.2d 370, quoting State

v. Lopa, 96 Ohio St. 410, 411, 117 N.E. 319(1917).

       {¶12} Crim.R. 33(B) provides that if a defendant fails to file a motion for a new trial

within 120 days of the jury’s verdict, he or she must seek leave from the trial court to file

a delayed motion. To obtain leave, the defendant must show by clear and convincing

proof that he or she was unavoidably prevented from discovering the evidence within the

120 days. State v. Lordi, 149 Ohio App.3d 627, 2002–Ohio–5517, 778 N.E.2d 605, ¶ 26–

27. Clear and convincing proof is that which will produce in the mind of the trier of fact a

firm belief or conviction as to the facts sought to be established. In re Adoption of

Holcomb, 18 Ohio St .3d 361, 368, 481 N.E.2d 613(1985); Lordi, supra, at ¶ 26.
Delaware County, Case No. 18CAA070053                                                      6


       {¶13} “The question of whether to decide a motion on the supporting evidence

filed with the motion or to hold an evidentiary hearing is within the discretion of the trial

court.” United States v. O'Dell, 805 F.2d 637, 643 (6th Cir.1986); State v. Sutton, 2016-

Ohio-7612, 73 N.E.3d 981, ¶13 (8th Dist.).

       ISSUE FOR APPEAL

       A. Whether the trial court abused its discretion in denying Maurent’s motion for

leave to file a motion for a new trial without a hearing.

       {¶14} The evidence Maurent is relying upon for his motion for new trial is the

federal search warrant that was issued to the FBI by a district judge in New Jersey for the

purposes of searching Maurent's residence as part of an investigation relating to the

present case. Maurent contends that the search warrant is invalid, and that use of

evidence obtained by the subsequent search denied him his right to a fair trial.

[Appellant’s Brief at 4).

       {¶15} The search warrant is not newly discovered evidence. The warrant was

executed before Maurent’s jury trial. In the material attached to Maurent’s motion is a

letter from Maurent’s trial attorney. The letter has attached several pages of the search

warrant with the explanation that counsel no longer has Maurent’s physical file. The

portions were all counsel could retrieve from his hard drive. Clearly, Maurent’s trial

attorney had access to and reviewed the search warrant. The FBI agent who applied for

and executed the search warrant testified both during a suppression hearing regarding

Maurent’s claimed Miranda rights violation and during his jury trial. She was therefore

available for cross-examination concerning the warrant and its execution.
Delaware County, Case No. 18CAA070053                                                     7


       {¶16} Trial courts should subject Crim.R. 33(A)(6) new trial motions to the closest

scrutiny:

              Applications for new trials on the ground of newly discovered

       evidence are not, however, favored by the courts, for the reason that the

       moving party has generally had ample opportunity to prepare his case

       carefully and to secure all of the evidence before the trial.             Such

       applications, whether in a court of law or in a court of equity, are entertained

       with reluctance and granted with caution, not only because of the danger of

       perjury, but also because of the manifest injustice in allowing a party to

       allege that which may be the consequence of his own neglect in order to

       defeat an adverse verdict. In order to prevent, as far as possible, the fraud

       and imposition which defeated parties may be tempted to practice as a last

       resort to escape the consequence of an adverse verdict, an application

       setting up the discovery of new evidence should always be subjected to the

       closest scrutiny by the court.      The applicant is required to rebut the

       presumption that the verdict is correct and that there has been a lack of due

       diligence and to establish other facts essential to warrant the granting of a

       new trial upon the ground of newly discovered evidence. The rule to be

       deduced from the cases is that where newly discovered evidence is of such

       conclusive nature, or of such decisive or preponderating character, that it

       would with reasonable certainty have changed the verdict or materially

       reduced the recovery, a new trial should be granted if it is satisfactorily
Delaware County, Case No. 18CAA070053                                                     8


       shown why the evidence was not discovered and produced at the time of

       the trial.

Taylor v. Ross, 150 Ohio St. 448, 450–51, 83 N.E.2d 222, 224 (1948), quoting 39

American Jurisprudence, 163, Section 156; accord Domanski v. Woda, 132 Ohio St. 208,

6 N.E.2d 601 (1937).

       {¶17} Maurent does not state with particularity exactly how the warrant was

defective. He points to nothing within the documents provided by his trial counsel to

demonstrate any irregularity in the issuance of the warrant. Rather, Maurent merely

proposed a series of generalities based upon an unsubstantiated possibility. Maurent

merely posits that the information might allow him to move for suppression of unidentified

evidence obtained pursuant to the search warrant. “Mere speculation does not meet the

accused’s burden to show that the withheld evidence is material.” State v. Rivas, 121

Ohio St.3d 469, 2009-Ohio-1354, 905 N.E.2d 618, ¶ 14. In none of the previous filings,

has Wilson alleged that his trial counsel was ineffective in failing to move to suppress the

search of his residence.

       {¶18} Maurent has not demonstrated he was unavoidably prevented from

discovering the alleged newly discovered evidence. Moreover, the alleged evidence is

unlikely to have affected his trial’s outcome. See United States v. Smith, 749 F.3d 465,

493 (6th Cir. 2014); Slagle v. Bagley, 457 F.3d 501, 527 (6th Cir. 2006).

       {¶19} Having concluded that Maurent had failed to demonstrate he was

unavoidably prevented from discovering the alleged newly discovered evidence and failed

to demonstrate a strong probability that the new evidence would change the outcome if a
Delaware County, Case No. 18CAA070053                                                     9


new trial were granted, we hold that the trial court did not abuse its discretion in denying

the motion for a new trial without a hearing.

       {¶20} Maurent’s First and Second Assignments of Error are overruled.

       {¶21} The judgment of the Delaware County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, Earle, J., concur



                                                _________________________________
                                                HON. W. SCOTT GWIN


                                                _________________________________
                                                HON. WILLIAM B. HOFFMAN


                                                _________________________________
                                                HON. EARLE E. WISE, JR.
WSG:clw 1214
