[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 : O P I N I O N 

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 21⁄2 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. 

EEW/db 327