[Cite as State v. Smith, 2021-Ohio-4388.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

Plaintiff-Appellee, 

vs. 

KENT SMITH, 

Defendant-Appellant. 

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APPEAL NO. C-210235 

TRIAL NOS. B-1601998 

 B-1507289-A 

O P I N I O N.

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: December 15, 2021 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant 

Prosecuting Attorney, for Plaintiff-Appellee, 

Kent Smith, pro se. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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CROUSE, Judge. 

{¶1} Defendant-appellant Kent Smith appeals the Hamilton County 

Common Pleas Court’s judgment denying his Crim.R. 33 motion for a new trial. We 

affirm the court’s judgment, because Smith did not seek leave to file the motion out 

of time, and the record shows that leave was not warranted. 

Procedural Posture

{¶2} Smith and Michelle Brown were charged with multiple felonies in two 

indictments in connection with a string of burglaries, robberies, and assaults in 

December 2015. Prior to trial, Smith’s appointed counsel moved for, and the trial 

court ordered, the appointment of DNA Diagnostics Center (“DDC”) to provide 

expert assistance concerning DNA-testing of a handgun recovered in a search of 

Brown’s backyard and a burglary victim’s assault rifle recovered in a search of 

Smith’s residence. 

{¶3} New counsel was appointed for trial. Smith was found guilty by a jury 

in February 2018 and sentenced a month later. Following our decision in the direct 

appeal, he stood convicted on two counts of aggravated robbery, one count of 

aggravated burglary, three counts of burglary, one count of felonious assault, and 

four counts of having weapons while under a disability. See State v. Smith, 1st Dist. 

Hamilton No. C-180151, 2019-Ohio-5264, appeals not accepted, 158 Ohio St.3d 

1436, 2020-Ohio-877, 141 N.E.3d 251.

{¶4} After his verdicts were returned, but before sentencing, Smith filed a 

pro se motion for a new trial. In that motion, he alleged prosecutorial misconduct in 

denying him “[his] rebuttal expert witness and D.N.A. test results,” allowing the jury 

to see him in handcuffs, and failing to disclose in discovery evidence impeaching 

Brown’s credibility. 

{¶5} Six months later, Smith filed a “Supplement to Pending Motion for 

New Trial,” with the stated purpose of providing “clarity” concerning the assertions 
OHIO FIRST DISTRICT COURT OF APPEALS 

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of his presentence new-trial motion. In that “Supplement,” Smith challenged the 

state’s DNA-test results showing him as the source of DNA found on swabs taken 

from the handgun and assault rifle. He asserted that law enforcement had used false 

and perjured documents to get his DNA and had improperly submitted the swabs 

instead of the guns for DNA testing. 

{¶6} A year later, Smith first raised the matter of his trial counsel’s 

effectiveness concerning DNA-testing of the guns. In his petition under R.C. 2953.21 

et seq., he sought postconviction relief on the grounds that he had been denied his 

constitutional rights to due process, compulsory process, and the effective assistance 

of counsel, because his trial counsel failed to submit the guns for testing by DDC and 

then lied to the court about her efforts to do so. The common pleas court denied the 

petition, and we affirmed, because Smith did not satisfy the statutory requirements 

for filing a postconviction petition out of time. State v. Smith, 1st Dist. Hamilton No. 

C-190714, 2021-Ohio-2952. 

{¶7} In December 2020, Smith filed the motion from which this appeal 

derives. In that motion, captioned “Amended Motion for New Trial,” Smith sought a 

new trial under Crim.R. 33(A)(1), (3), (5) and (6), on essentially the same grounds 

advanced in his postconviction petition. He asserted that his trial counsel had been 

ineffective, and that he had been denied his right to compulsory process, when 

counsel neglected to adequately review his case to discover that previous appointed 

counsel had not sent the guns to DDC for DNA testing. And he asserted that he had 

been denied a fair trial, because the state’s expert’s DNA testimony was left 

unchallenged, and he was compelled to testify, when trial counsel misled him and the 

court about her efforts to secure DNA testing of the weapons by DDC and an analysis 

by DDC of the state’s DNA-testing results. 

{¶8} Smith’s 2020 motion was supported by outside evidence in the form of 

correspondence from March 7 to May 24, 2018, between Smith and the Hamilton 
OHIO FIRST DISTRICT COURT OF APPEALS 

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County Public Defender’s Office and between the public defender’s office and DDC. 

On March 7, Smith sent a request to the public defender’s office for trial counsel to 

file a motion for a new trial on the grounds that the trial court did not rule on his pro 

se pretrial motion to suppress and the jury saw him in handcuffs. On April 20, the 

public defender’s office responded with a letter advising Smith that DDC had not 

produced a DNA report and offering the opinion that trial counsel had been 

“ineffective” in not following up on first appointed counsel’s request for DDC to do 

so. And on May 24, DDC sent the public defender’s office a letter memorializing the 

inquiries made to DDC in Smith’s case by first and second appointed counsel and by 

Smith’s father. In that letter, DDC confirmed that first appointed counsel had 

requested case-review services, but not a consult, that no report or other work 

product had been produced, that Smith’s father had been told in March 2018 that 

DDC could discuss the case and work only with counsel, and that second appointed 

counsel had left a message on her first attempt at contacting DDC and had not 

thereafter returned DDC’s calls. 

{¶9} In this appeal from the common pleas court’s “Entry Overruling 

Motion for New Trial,” Smith presents two assignments of error that may fairly be 

read together to challenge the denial of a new trial without a hearing. We find no 

merit to that challenge. 

Leave Not Sought or Warranted

{¶10} A new trial may be granted under Crim.R. 33(A) on the ground of newly 

discovered evidence, accident or surprise, an error of law, or an irregularity or abuse of 

discretion that prevented a fair trial. Crim.R. 33(A)(1), (A)(3), (A)(5), and (A)(6). A 

motion for a new trial is directed to the sound discretion of the trial court, and the 

court’s decision will not be reversed on appeal unless the court abused that 

discretion. See State v. Williams, 43 Ohio St.2d 88, 330 N.E.2d 891 (1975), 

paragraph two of the syllabus. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶11} A Crim.R. 33(A)(6) motion for a new trial on the ground of newly 

discovered evidence must be filed either within 120 days of the return of the verdicts 

or within seven days after leave to file a new-trial motion has been granted. A 

motion for a new trial on grounds other than newly discovered evidence must be filed 

either within 14 days of the return of the verdict or within seven days after the 

granting of leave. Leave to file a Crim.R. 33(A)(6) motion out of time may be granted 

only upon clear and convincing proof that the movant had been unavoidably 

prevented from timely discovering the evidence upon which the motion relies. Leave 

to move for a new trial on grounds other than newly discovered evidence may be 

granted only upon clear and convincing proof that the movant had been unavoidably 

prevented from timely filing a new-trial motion. See Crim.R. 33(B); State v. 

Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990); State v. Carusone, 1st Dist. 

Hamilton No. C-130003, 2013-Ohio-5034, ¶ 32. 

{¶12} Smith’s verdicts were returned on February 20, 2018. Thus, he had 

until June 20 to move for a new trial based on newly discovered evidence and until 

March 6 to move for a new trial on other grounds. See Crim.R. 33(B). 

{¶13} On March 15, 2018, Smith filed his pro se presentence motion for a 

new trial. The motion was not timely filed to the extent that it sought a new trial on 

grounds other than newly discovered evidence. Smith did not seek leave to move for a 

new trial out of time. Nor does the record show that, with respect to those grounds, 

leave was warranted.

{¶14} The 2018 motion was timely filed to the extent that it sought a new trial 

based on newly discovered evidence. But Smith filed the motion before he was 

sentenced and thus while he was represented by counsel. And his trial counsel did 

not join in the motion or otherwise indicate support for it. A criminal defendant has 

no right to a “hybrid” form of representation, during which he is represented by 

counsel, but acts simultaneously as his own counsel. See State v. Smith, 2017-Ohio-
OHIO FIRST DISTRICT COURT OF APPEALS 

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8558, 99 N.E.3d 1230, ¶ 30-32 (1st Dist.), citing State v. Thompson, 33 Ohio St.3d 1, 

7, 514 N.E.2d 407 (1987). Therefore, Smith had no right to file, “[s]upplement,” or 

“[a]mend[]” his 2018 motion. And the trial court was not required to entertain the 

motion. See State v. Ojile, 1st Dist. Hamilton No. C-200340, 2021-Ohio-2955, ¶ 9.

{¶15} Nor was the common pleas court required to entertain Smith’s 2020 

“Amended Motion for New Trial” on the merits. Because his 2018 motion for a new 

trial was a legal nullity, the filing of his 2020 new-trial motion did not relate back to the 

filing of the 2018 motion. See id. Thus, the 2020 motion, filed almost three years 

after the return of the verdicts in his case, was filed well outside the time limits 

prescribed by Crim.R. 33(B). Smith did not seek leave to file the motion out of time. 

And the record does not show that he was unavoidably prevented from timely 

discovering the new evidence upon which his motion depended or from timely 

moving for a new trial on grounds other than newly discovered evidence. We, 

therefore, hold that the court did not abuse its discretion in denying a new trial on 

the grounds presented in the 2020 motion. 

We Affirm

{¶16} The common pleas court properly declined to entertain Smith’s 2018 

motion for a new trial, because that motion was a legal nullity. And the court did not 

abuse its discretion in denying, without a hearing, the relief sought in his 2020 newtrial motion, when that motion was not timely filed, and leave to move for a new trial 

out of time was neither sought nor warranted. Accordingly, we overrule the 

assignments of error and affirm the judgment of the court below. 

Judgment affirmed. 

MYERS, P.J., and BERGERON, J., concur. 

Please note: 

The court has recorded its entry on the date of the release of this opinion.