[Cite as State v. Anderson, 2014-Ohio-1849.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                   No. 13AP-831
v.                                                  :         (C.P.C. No. 07CR-06-4563)

Kim L. Anderson,                                    :     (ACCELERATED CALENDAR)

                 Defendant-Appellant.               :



                                         D E C I S I O N

                                       Rendered on May 1, 2014


                 Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
                 appellee.

                 Kim L. Anderson, pro se.

                  APPEAL from the Franklin County Court of Common Pleas

SADLER, P.J.
        {¶ 1} Defendant-appellant, Kim L. Anderson, appeals from a judgment of the
Franklin County Court of Common Pleas denying both his motion for leave to file a
motion for new trial and his motion for new trial. For the reasons that follow, we affirm
the judgment of the trial court.
I. BACKGROUND
        {¶ 2} In 2007, appellant was indicted for multiple offenses pertaining to
allegations of mortgage fraud.             During a jury trial, evidence established appellant
participated in a mortgage fraud scheme that involved six properties and defrauded
mortgage lenders of over $1 million. State v. Anderson, 10th Dist. No. 08AP-1071, 2009-
Ohio-6566, ¶ 3 ("Anderson I"). Following trial, appellant was convicted of 13 of the 21
No. 13AP-831                                                                                            2


indicted offenses and was sentenced to an aggregate prison term of 15 years. Id. at ¶ 9.
Appellant's conviction and sentence were affirmed by this court in Anderson I. Id.
        {¶ 3} In the years following the disposition of his direct appeal, the record reveals
appellant has filed a number of motions, including a prior motion for a new trial and
various motions seeking postconviction relief. The motion currently before this court is
appellant's March 13, 2013 motion for leave to file a motion for new trial, pursuant to
Crim.R. 33, and motion for new trial pursuant to Crim.R. 33(A)(6). Appellant's motion
for leave to file was based on "truly newly discovered evidence recently received in a Civil
Case" that he was "unavoidably prevented from discovering." (Motion for leave, 1.) The
newly discovered evidence consists of a multitude of evidence presented in appellant's
civil litigation.1 Though asserting all of the evidence was relevant, appellant primarily
relied on the affidavit of Frank Farkas that was submitted in the "Discovery Process
within that Case."       (Motion for new trial, 1.)         According to appellant, the affidavit
demonstrates that Farkas lied at appellant's criminal trial. Appellant's motion indicates
that, prior to October 5, 2012, he "had no knowledge that this information even existed."
(Motion for leave, 3.)
        {¶ 4} The trial court found appellant failed to present clear and convincing
evidence that he was unavoidably prevented from timely filing the motion for leave and
failed to present any evidence presenting a strong probability that the result of the trial
would be changed if a new trial was ordered. Accordingly, the trial court denied both the
motion for leave and the motion for new trial.
II. ASSIGNMENTS OF ERROR
        {¶ 5} This appeal followed, and appellant brings three assignments of error for
our review:
                [I.] The Trial Court erred as a matter of law and abused its
                discretion by Denying Defendant's Motion for leave to file a
                Delayed Motion for New Trial and Defendant's Second
                Motion for New Trial based on Newly Discovered evidence;

1 In his March 13, 2013 motion for new trial, appellant states that, in addition to trying to prove his

innocence, he has undertaken civil litigation seeking damages against "the persons and parties he believes
Negligently and Fraudulently caused him harm in several of the Real Estate Transactions," specifically,
"Preferred Title Agency, Inc., Frank Farkas, Rebecca Barley, and Stewart Title Company, Inc." (Motion for
new trial, 1.)
No. 13AP-831                                                                              3


               that was withheld from him by the prosecutors in his criminal
               trial, and only discovered after filing a civil case. Moreover,
               while the trial court does not dispute that the evidence was
               withheld by the State; the trial court abused its discretion by,
               in essence, finding that Mr. Anderson was unavoidably
               prevented from discovering the new evidence, but waited too
               long to file his Motion.

               [II.] Defendant's trial counsel is ineffective when he fails to
               investigate or pursue discovery; specifically when he was
               involved in many of the underlying transactions, and that two
               (2) properties were sold before trial, and this evidence along
               with other exculpatory evidence was withheld by the State;
               even after Rule 16 Discovery requests in clear violation of said
               discovery rules, counsel's duties to Defendant; and Brady V.
               Maryland, 373 U.S. 83 (1963).

               [III.] The Trial Court erred as a matter of law by not holding
               an Evidentiary Hearing on Defendant's Motion for New Trial;
               especially in light of evidence showing prosecutorial
               misconduct, witness perjury, and State advancing knowing
               use of false testimony along with new evidence indicating
               conviction not supported by credible evidence; making his
               conviction and sentence void and contrary to law.

III. DISCUSSION
      A. First and Third Assignments of Error
      {¶ 6} Because they are interrelated, appellant's first and third assignments of
error will be addressed as one. Together these assigned errors challenge the trial court's
decision denying appellant's motion for leave to file a motion for new trial and to do so
without a hearing.
      {¶ 7} In considering a trial court's denial of a motion for leave to file a motion for
new trial, this court employs an abuse of discretion standard. State v. Anderson, 10th
Dist. No. 12AP-133, 2012-Ohio-4733, ¶ 9 ("Anderson II"). An abuse of discretion exists
when the trial court's attitude in reaching its judgment was unreasonable, arbitrary or
unconscionable.      Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).         Crim.R.
33(A)(6) provides in part that a new trial may be granted on motion by the defendant
"[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(B)
No. 13AP-831                                                                              4


"imposes time limits for the filing of a motion for a new trial." Anderson II at ¶ 11.
Specifically, Crim.R. 33(B) states:
               Application for a new trial shall be made by motion which,
               except for the cause of newly discovered evidence, shall be
               filed within fourteen days after the verdict was rendered, or
               the decision of the court where a trial by jury has been waived,
               unless it is made to appear by clear and convincing proof that
               the defendant was unavoidably prevented from filing his
               motion for a new trial, in which case the motion shall be filed
               within seven days from the order of the court finding that the
               defendant was unavoidably prevented from filing such motion
               within the time provided herein.

               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.

       {¶ 8} This court has previously noted that " 'Crim.R. 33 contemplates a two-step
procedure when a defendant seeks to file a motion for new trial more than 120 days after
the conclusion of the trial.' " State v. Stepherson, 10th Dist. No. 13AP-282, 2013-Ohio-
5396, ¶ 15, quoting State v. Bethel, 10th Dist. No. 09AP-924, 2010-Ohio-3837, ¶ 13.
Under the first step, " 'the defendant must demonstrate that he was unavoidably
prevented from discovering the evidence relied upon to support the motion for new
trial.' " Id., quoting Bethel at ¶ 13. A defendant is " 'unavoidably prevented' " from
discovering the new evidence within the time period for filing a motion for new trial when
the defendant " 'had no knowledge of the evidence supporting the motion for new trial
and could not have learned of the existence of the evidence within the time prescribed for
filing such a motion through the exercise of reasonable diligence.' " Id., quoting Bethel at
¶ 13, citing State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244. Under the second
step, " 'if the defendant does establish by clear and convincing evidence that the delay in
No. 13AP-831                                                                                5


finding the new evidence was unavoidable, the defendant must file the motion for new
trial within seven days from that finding.' " Id., quoting Bethel at ¶ 13.
       {¶ 9} The Supreme Court of Ohio, in State v. Petro, 148 Ohio St. 505 (1947),
syllabus, set forth the following six-part test for determining whether a motion for new
trial on the basis of newly discovered evidence should be granted:
               To warrant the granting of a motion for a new trial in a
               criminal case, based on the ground of newly discovered
               evidence, it must be shown that the new evidence (1) discloses
               a strong probability that it will change the result if a new trial
               is 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.

       {¶ 10} In considering appellant's motion for leave to file a motion for new trial, the
trial court found appellant failed to demonstrate that he was unavoidably prevented from
filing the motion in a timely manner. Specifically, the trial court held that appellant failed
to explain the 159-day delay in filing his motion for leave after obtaining the information
from his civil case.     The trial court also noted that "[w]ith regard to Mr. Farkas,
[appellant] has previously filed motions concerning allegations as to inconsistencies and
perjury regarding his testimony." (Decision, 6.) After examining Mr. Farkas's affidavit,
the trial court stated, "[w]ith all due respect to [appellant] herein, this Court cannot see
any material differences between what [appellant] claims that Mr. Farkas testified to in
his trial, and what is contained in his affidavit." (Decision, 7.) In conclusion, the trial
court found appellant failed to present clear and convincing evidence that he was
unavoidably prevented from timely filing the motion for leave and failed to present any
evidence presenting a strong probability that the result of the trial would be changed if a
new trial was ordered.
       {¶ 11} Appellant first contends that in denying his motion for leave, the trial court
should not have considered the 159-day delay between filing the motion for leave and the
receipt of the information. According to appellant, this reasoning is "fatally flawed."
(Appellant's brief, 5.) We reject appellant's contention.
No. 13AP-831                                                                                6


       {¶ 12} As this court stated in Anderson II, which reviewed the trial court's denial of
appellant's prior motion for new trial based on newly discovered evidence:
               Further, a " 'trial court may require a defendant to file his
               motion for leave to file within a reasonable time after he
               discovers the evidence.' " [State v. Golden, 10th Dist. No.
               09AP-1004, 2010-Ohio-4438, ¶ 18], quoting State v. Berry,
               10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 37. 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, ¶ 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 (Oct. 9, 1997).

               State v. Wilson, 7th Dist. No. 11 MA 92, 2012-Ohio-1505, ¶ 57
               (also adopting the rule).

Id. at ¶ 17.
       {¶ 13} In Anderson II, appellant acknowledged that 134 days passed from his
receipt of the alleged newly discovered evidence on August 20, 2010 and the filing of his
motion for new trial on January 4, 2011. This court rejected appellant's contention that
the timing of the filing of his motion was reasonable in light of his current incarceration
and reasoned, "In view of the fact that Crim.R. 33(B) establishes an initial 120-day period
to file a motion for a new trial based on newly discovered evidence, and under the
particular facts of this case, the trial court did not abuse its discretion in concluding that
appellant had not filed his motion within a reasonable time after discovery of the
evidence." Id. at ¶ 18.
       {¶ 14} Despite the ruling in Anderson II, appellant now asks this court to find the
159-day delay reasonable. The trial court rejected appellant's contention that the filing
was completed in a reasonable amount of time after finding that appellant failed to submit
any good reason for the delay. On appeal, other than stating the trial court was wrong to
have considered the 159-day delay, appellant provides no reasoning as to why the delay
No. 13AP-831                                                                                 7


should be considered reasonable. Given Anderson II and the other authorities cited
supra, we cannot conclude that the trial court abused its discretion in considering the 159-
day delay.
       {¶ 15} Appellant also argues the trial court erred in denying his motion for leave to
file a motion for new trial because he presented newly discovered evidence sufficient to
warrant a hearing. The decision whether to grant or hold an evidentiary hearing on a
defendant's request for leave to file a delayed motion for new trial falls within the sound
discretion of the trial court and will not be disturbed on appeal absent an abuse of that
discretion. State v. Caulley, 10th Dist. No. 12AP-100, 2012-Ohio-2649, ¶ 15, citing State
v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, ¶ 19 (2d Dist.); State v. Carson,
10th Dist. No. 07AP-492, 2007-Ohio-6382, ¶ 22.
       {¶ 16} Here, the trial court concluded appellant's motion for leave to file was not
filed within a reasonable time frame and that, after review of the Farkas affidavit,
appellant demonstrated no "material differences between what [appellant] claims that
Mr. Farkas testified to in his trial, and what is contained in his affidavit." (Decision, 7.)
Given the trial court's findings that the motion for leave was not filed within a reasonable
time frame and that appellant failed to present clear and convincing evidence establishing
a strong probability that the result of the trial would be changed if a new trial was ordered,
we discern no abuse of discretion in the trial court's decision to deny appellant's motion
for leave to file without a hearing.
       {¶ 17} To the extent appellant's arguments can be construed as challenging the
denial of the motion for new trial without a hearing, it is unnecessary to address such
arguments in this regard because appellant did not demonstrate that he was entitled to
leave to file such a motion. Berry at ¶ 34.
       {¶ 18} Accordingly, appellant's first and third assignments of error are overruled.
       B. Second Assignment of Error
       {¶ 19} In his second assignment of error, appellant contends his trial counsel was
ineffective during "all stages of his criminal proceedings." (Appellant's brief, 7.) Not only
does this allegation fail to relate to the alleged newly discovered evidence, but, also
appellant did not raise this claim in the motion for leave to file a motion for new trial or in
his motion for new trial. An appellate court will not entertain issues that were not raised
No. 13AP-831                                                                               8


in the trial court first. State v. Brown, 6th Dist. No. L-98-1130 (Aug. 21, 1998) (issues not
raised in motion for new trial pursuant to Crim.R. 33 cannot be raised for the first time on
appeal); State v. Williams, 51 Ohio St.2d 112 (1977) (it is axiomatic that arguments which
are not raised in the trial court are waived for purposes of appeal); Owners Mgt. Co. v.
Moore, 111 Ohio App.3d 820, 825 (6th Dist.1996).
       {¶ 20} Accordingly, appellant's second assignment of error is overruled.
IV. CONCLUSION
       {¶ 21} Having overruled appellant's three asserted assignments of error, the
judgment of the Franklin County Court of Common Pleas is hereby affirmed.
                                                                       Judgment affirmed.

                           BROWN and DORRIAN, JJ., concur.
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