State v. Maurent , 2018 Ohio 5304 ( 2018 )

[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