[Cite as State v. Hillman, 2020-Ohio-5597.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 No. 20AP-244 

 Plaintiff-Appellee, : (C.P.C. No. 13CR-6648)

v. : & No. 20AP-245 

 (C.P.C. No. 13CR-6206) 

Robert L. Hillman, : 

 (ACCELERATED CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on December 8, 2020 

 

On brief: Ron O'Brien, Prosecuting Attorney, and 

Kimberly M. Bond, for appellee. 

On brief: Robert Hillman, pro se. 

 

APPEAL from the Franklin County Court of Common Pleas 

NELSON, J. 

{¶ 1} Defendant-appellant Robert L. Hillman urges that the Franklin County Court 

of Common Pleas erred in denying his request for leave to file a delayed motion for new 

trial without holding a hearing and without stating findings of fact and conclusions of law. 

But the affidavits put forth by Mr. Hillman did not support his claim that he was 

unavoidably prevented from timely discovering "new" evidence, nor did they even begin to 

explain why he waited years to pursue a new trial on the basis he now claims. The trial court 

was not obligated to issue findings of fact and conclusions of law under Crim.R. 33, and in 

the context of this record was not required to hold a hearing on the matter. We see no 

demonstrated abuse of discretion, and we will affirm the trial court's judgment. 

{¶ 2} Some of the history of this case provides perspective. On February 18, 2014, 

after a trial in which Mr. Hillman represented himself, a jury found Mr. Hillman guilty of 

two counts of burglary and one count of attempted burglary in Franklin C.P. No. 13CR6206 (involving incidents around The Ohio State University) and guilty of burglary, theft, 
Nos. 20AP-244 & 20AP-245 2 

and receiving property in Franklin C.P. No. 13CR-6648 (involving an incident on East Town 

Street). The trial court sentenced him to 18 years in prison. See February 25, 2014 judgment 

entries. Mr. Hillman filed a timely Crim.R. 33 motion for new trial on March 4, 2014 that 

claimed, in part, witness and prosecutorial misconduct based on allegedly false testimony 

provided by the state's witness in the East Town Street case (an Officer Larrison). The trial 

court denied Mr. Hillman's motion. 

{¶ 3} Mr. Hillman appealed his convictions and sentence and assigned 11 errors, 

challenging among other matters Officer Larrison's testimony and proof of the 

perpetrator's identity. In State v. Hillman, 10th Dist. No. 14AP-252, 2014-Ohio-5760, we 

affirmed his convictions and sentence, and the Supreme Court of Ohio declined review in 

State v. Hillman, 141 Ohio St.3d 1475, 2015-Ohio-554, and State v. Hillman, 142 Ohio St.3d 

1477, 2015-Ohio-2104. 

{¶ 4} Both while his direct appeal was pending and after the appellate decision was 

issued, Mr. Hillman further asserted his cause in postconviction motions, original actions, 

and an accusation by affidavit against Officer Larrison under R.C. 2935.09. Those various 

efforts were ultimately unsuccessful. See State v. Hillman, 10th Dist. No. 17AP-256, 2017-

Ohio-8217, discretionary appeal denied, 152 Ohio St.3d 1467, 2018-Ohio-1795, and 157 

Ohio St.3d 1408, 2019-Ohio-3731 (finding Mr. Hillman's motion to vacate sentence to be 

an untimely postconviction petition and affirming the trial court's denial of the petition); 

State v. Hillman, 10th Dist. No. 18AP-696 (May 3, 2019) (memorandum decision), 

discretionary appeal denied, 158 Ohio St.3d 1422, 2020-Ohio-647 (affirming trial court 

judgment denying Mr. Hillman's petition for postconviction relief); Hillman v. Larrison, 

10th Dist. No. 18AP-896, 2019-Ohio-2537, discretionary appeal denied, 157 Ohio St.3d 

1497, 2019-Ohio-4840 (affirming trial court judgment finding Mr. Hillman's accusation by 

affidavit filed pursuant to R.C. 2935.09 not meritorious, referring the matter to the 

prosecuting attorney, and closing the case); and Hillman v. Larrison, 10th Dist. No. 20AP7, 2020-Ohio-4896 (affirming the trial court's denial of Mr. Hillman's motion to vacate 

fines and costs). 

{¶ 5} On February 20, 2020, six years after the jury returned its guilty verdicts, 

Mr. Hillman filed a request for leave to file a delayed Crim.R. 33 motion for a new trial in 

Franklin C.P. No. 13CR-6206. He filed the same motion eight days later in Franklin C.P. 
Nos. 20AP-244 & 20AP-245 3 

No. 13CR-6648. He characterized the motions for leave as "based upon newly discovered 

evidence pursuant to Crim.R. 33(A)(2) and Crim.R. 33(B)," describing that evidence as a 

"911 or event information sheet the police claimed to testify from" at trial. Motion for Leave 

at 1; Hillman Affidavit within Motion for Leave at 4. The trial court denied Mr. Hillman's 

motion in both cases, finding Mr. Hillman's request for leave "not well taken" in the East 

Town Street case and that it did "not pertain to" the OSU case. March 19, 2020 Decision 

and Entry in Franklin C.P. No. 13CR-6648 at 1; March 18, 2020 Decision and Entry in 

Franklin C.P. No. 13CR-6206 at 1. 

{¶ 6} Mr. Hillman appealed both judgments. We consolidated his appeals and now 

review Mr. Hillman's one assigned error: 

* * * The trial court abused its discretion, and committed plain 

and prejudicial error when it refused to comply with statutory 

law and provide appellant with findings of fact and 

conclusion[s] of law when denying appellant's motion for leave 

to file a delayed motion for a new trial in violation of appellant's 

1st, 5th, and 14th amendment rights given by the United States 

Constitution[]. 

Appellant's Brief at 1 (capitalizations altered). 

{¶ 7} Mr. Hillman argues that findings of fact and conclusions of law were needed 

to explain the trial court's basis for discounting the credibility of the affidavits he provided, 

and that the failure to provide such findings of fact and conclusions of law resulted in the 

trial court judgments not constituting final appealable orders (although he nonetheless 

appeals). Further suggesting that an appeal does not lie, he requests that this court "order 

the trial court to provide appellant [with] findings of fact and conclusions of law in order to 

create a final appealable order." Appellant's Brief at 4. Contrary to Mr. Hillman's position, 

however, a trial court is not required to issue findings of fact and conclusions of law under 

Crim.R. 33. See Crim.R. 33; State ex rel. Collins v. Pokorny, 86 Ohio St.3d 70 (1999) 

(holding that a trial court has no duty to issue findings of fact or conclusions of law when it 

denies a Crim.R. 33 motion for a new trial). Construing Mr. Hillman to argue that the lack 

of findings and conclusions constituted error requiring reversal, we would not sustain the 

assignment on that basis. The cases he cites do not involve trial court decisions on 

Crim.R. 33 motions for leave to file new trial motions; they are not applicable to this 

circumstance. 
Nos. 20AP-244 & 20AP-245 4 

{¶ 8} Mr. Hillman also argues that the trial court should have held a hearing on his 

request for leave to file a motion for a new trial. His assignment does not expressly address 

that issue and appears focused only on a lack of findings of fact and conclusions of law. But 

even if his assignment could be read more broadly, Mr. Hillman has not demonstrated that 

the trial court abused its discretion by not holding a hearing in this case. 

{¶ 9} Crim.R. 33 permits a convicted defendant to file a motion for a new trial 

within 120 days after the day of the verdict on grounds of "newly discovered evidence" that 

the defendant could not, with reasonable diligence, have discovered and produced at trial. 

Crim.R. 33(A)(6) and (B); State v. Armengau, 10th Dist. No. 16AP-355, 2017-Ohio-197, ¶ 8, 

discretionary appeal denied, 149 Ohio St.3d 1434, 2017-Ohio-4396. A trial court may grant 

leave to file a motion for new trial based on newly discovered evidence beyond the 120-day 

deadline where the defendant can show, by clear and convincing evidence, that he was 

unavoidably prevented from discovering the evidence within the time limit. Armengau at 

¶ 8. "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." State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 19. 

{¶ 10} A trial court may hold an evidentiary hearing on a request for leave to file a 

delayed motion for new trial, but it is not always required to do so. Armengau at ¶ 33. The 

defendant "is only entitled to a hearing on a motion for leave to file a motion for a new trial 

if he submits documents which, on their face, support his claim that he was unavoidably 

prevented from timely discovering the evidence at issue." Armengau at ¶ 33 (internal 

quotations omitted). See, e.g., State v. Alexander, 11th Dist. No. 2011-T-0120, 2012-Ohio4468, ¶ 26 (holding that the trial court should have held a hearing on the issue of 

unavoidable delay to support leave to file a motion for new trial based on newly discovered 

evidence where the defendant presented an affidavit of a witness who recanted his trial 

testimony). " '[N]o such 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. Ambartsoumov, 10th Dist. No. 12AP-878, 2013-Ohio-3011, 

¶ 13, quoting State v. Peals, 6th Dist. No. L-10-1035, 2010-Ohio-5893, ¶ 23. Both a decision 

on the request for leave to file a motion for a new trial and a decision as to whether to hold 
Nos. 20AP-244 & 20AP-245 5 

an evidentiary hearing on such a request will not be disturbed on appeal absent an abuse of 

discretion. Armengau at ¶ 6, 32-33. 

{¶ 11} Mr. Hillman asserts that the two affidavits he submitted in support of his 

request for leave entitled him to a hearing on the issue of whether he was unavoidably 

prevented from or delayed in discovering evidence pertaining to whether Officer Larrison 

falsely testified about the 911 call associated with the East Town Street incident. Initially, 

we note, as found by the trial court, that the evidence invoked by Mr. Hillman appears to 

concern only the East Town Street incident at issue in Franklin C.P. No. 13CR-6648. The 

asserted newly discovered evidence did not relate to the OSU incidents in Franklin C.P. No. 

13CR-6206, and that itself is reason to uphold the trial court in summarily denying 

Mr. Hillman's request for leave in that case. 

{¶ 12} Moreover, and as to both cases, the affidavits supplied by Mr. Hillman do not, 

on their face, support his claim that he was unavoidably prevented from timely discovering 

what he says is new evidence. The first affidavit, his own, acknowledges that the evidence 

at issue—"the 911 or event information sheet the police claimed to testify from"—was 

available and presumably his for the asking at the time of trial. Hillman Affidavit within 

Motion for Leave at 4 (emphasis added). His affidavit does not show he "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[.]" Berry at ¶ 19. 

{¶ 13} And the affidavit provided by Mr. Hillman's sister, Cheryl Ayler, shows that 

after he acquired the evidence, he waited years to file this request for leave to file a motion 

for new trial. Hillman Affidavit within Motion for Leave at 4. Ms. Ayler avers that, 

"sometime in the year of 2017 [she] personally submitted an affidavit to the Franklin 

County Court of Common Pleas court on behalf of * * * [Mr.] Hillman stating that [she] had 

received a legal document from the Columbus Police Dept. in which they claimed was a 911 

transcript of a call which occurred in 2013 in [the East Town Street case]." Ayler Affidavit 

at 1. "[A]fter receiving this information directly from the Columbus Police Dept. [she] sent 

this information to [Mr.] Hillman to use in his post conviction proceedings, and other 

proceedings against the officer." Ayler Affidavit at 1. 
Nos. 20AP-244 & 20AP-245 6 

{¶ 14} "Most courts, including this court, require the party seeking leave under 

Crim.R. 33(B) to file a motion for leave within a reasonable time after discovering the 

evidence supporting the motion for new trial." Armengau at ¶ 16. Comparing Ms. Ayler's 

loose reference to 2017 with the request for leave filed in February of 2020 shows that 

Mr. Hillman waited some two to three years from that point to file the request for leave in 

this case. We note that the actual delay between acquisition and filing was even longer: the 

record of this appeal shows that Mr. Hillman obtained the 911 event information sheet 

sometime in 2016 and references it both in an April 20, 2016 filing associated with his 

accusation by affidavit case against Officer Larrison under R.C. 2935.09 and in a 

December 2016 postconviction relief motion. See December 19, 2016 Post Conviction 

Motion at 1-2; January 4, 2017 Ayler Affidavit at 1; Hillman v. Larrison, 2019-Ohio-3537, 

at ¶ 2, 18-20, and Hillman v. Larrison, 10th Dist. No. 17AP-160, 2018-Ohio-184, ¶ 12, 16; 

Motion for Leave at 3. While Mr. Hillman appears to refer to the R.C. 2935.09 proceedings 

as a reason to excuse his delay, Motion for Leave at 3, he provides, and we find, no reason 

the trial court would "lack jurisdiction" to consider a request for leave to file a motion for a 

new trial while his R.C. 2935.09 case was pending. 

{¶ 15} Because Mr. Hillman's affidavits fail to allege facts that would excuse his 

failure timely to file a motion for new trial, and also because he did not file his request for 

leave within a reasonable time after obtaining the evidence supporting his motion, the trial 

court did not abuse its discretion by declining to hold an evidentiary hearing on his request. 

Armengau at ¶ 33. 

{¶ 16} Finding no abuse of discretion under the circumstances demonstrated here, 

we overrule Mr. Hillman's assignment of error. We affirm the judgment of the Franklin 

County Court of Common Pleas. 

Judgment affirmed. 

SADLER, P.J., and DORRIAN, J., concur.