State v. Smith , 2022 Ohio 1291 ( 2022 )

[Cite as State v. Smith, 2022-Ohio-1291.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210235
TRIAL NOS. B-1507289A
Plaintiff-Appellee, : B-1601998
vs. :
KENT SMITH, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 20, 2022
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
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 move for a new trial
out of time.
{¶2} This is a revised opinion. On January 5, 2022, Smith filed an application
for reconsideration of our opinion and judgment entered on December 15, 2021. See
State v. Smith, 1st Dist. Hamilton No. C-210235, 2021-Ohio-4388. In his application,
he argued that we erred in holding that he filed his motion for a new trial prior to being
sentenced and while he was represented by counsel. In our December 15, 2021
opinion, we held that Smith had no right to file his motion pro se, and therefore, his
motion was a legal nullity. In an entry filed contemporaneously with this revised
opinion, we granted Smith’s application for reconsideration after further review of the
record. We agreed that it was inaccurate and unfair to conclude that Smith’s motion
for a new trial was a legal nullity. Accordingly, we vacated our prior opinion of
December 15, 2021, in its entirety. We now replace it with the following opinion.
Procedural Background
{¶3} 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.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} New counsel was appointed for trial. Smith was found guilty by a jury in
February 2018 and sentenced a month later. Following our opinion 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.
{¶5} Smith filed a pro se motion for a new trial on March 15, 2018. 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.
{¶6} Six months later, Smith filed a “Supplement to Pending Motion for New
Trial,” with the stated purpose of providing “clarity” concerning the assertions of his
March 2018 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.
{¶7} 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
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OHIO FIRST DISTRICT COURT OF APPEALS
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.
{¶8} 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.
{¶9} Smith’s December 2020 motion was supported by outside evidence in
the form of correspondence from March 7 to May 24, 2018, between Smith and the
Hamilton 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
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OHIO FIRST DISTRICT COURT OF APPEALS
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.
{¶10} On January 21, 2021, the common pleas court docketed an “Entry
Overruling Motion for New Trial,” but did not state any reasons for its decision. Smith
filed this appeal of the January 21 entry. Smith presents two assignments of error that
may fairly be read together to challenge the denial of his motion for a new trial without
a hearing. We find no merit in that challenge.
Leave Not Sought
{¶11} 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), (3), (5), and (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.
{¶12} 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
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OHIO FIRST DISTRICT COURT OF APPEALS
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.
{¶13} 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).
{¶14} On March 15, 2018, Smith filed a pro se motion for a new trial. In his
March 2018 motion, he argued that the state withheld exculpatory evidence and his
constitutional rights were violated because the jury saw him in handcuffs during the
trial. Because he sought a new trial on grounds other than newly discovered evidence,
the March 2018 motion was not timely filed. And Smith did not seek leave to move for
a new trial out of time.
{¶15} In his December 2020 “Amended” motion, Smith raised newly
discovered evidence for the first time. However, the December 2020 motion was filed
almost three years after the return of the verdicts, well outside of the time limits
prescribed in Crim.R. 33(B). The motion did not discuss the claims raised in the March
2018 motion, and therefore did not relate back to the March 2018 motion. Because
Smith did not seek leave to file the December 2020 motion out of time, the motion was
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OHIO FIRST DISTRICT COURT OF APPEALS
properly denied. See State v. Ojile, 1st Dist. Hamilton No. C-200340, 2021-Ohio-2955,
¶ 10.
Conclusion
{¶16} The common pleas court did not err in denying, without a hearing,
Smith’s December 2020 motion for a new trial, because the motion was not timely
filed and Smith did not seek leave to file the motion out of time. 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 own entry on the date of the release of this opinion.
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