State v. Mills ( 2023 )

[Cite as State v. Mills, 2023-Ohio-3783.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30668
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
PHIL D. MILLS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 16 08 2784
DECISION AND JOURNAL ENTRY
Dated: October 18, 2023
HENSAL, Presiding Judge.
{¶1} Phil D. Mills appeals the denial of his motion for leave to file a motion for new trial
and his petition for post-conviction release by the Summit County Court of Common Pleas. For
the following reasons, this Court affirms.
I.
{¶2} A jury found Mr. Mills guilty of aggravated robbery, aggravated burglary, and
having weapons while under disability after his DNA was found on the handle of a gun and a ski
mask that were used in the commission of those offenses, even though a defense witness testified
that he had committed the offense instead of Mr. Mills. This Court affirmed Mr. Mills’s
convictions on direct appeal but remanded the matter for a limited resentencing hearing. Mr. Mills
later petitioned for post-conviction release, but the trial court denied his petition, and this Court
upheld its decision.
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{¶3} A year later, Mr. Mills filed another petition for post-conviction relief and moved
for leave to file a motion for new trial. According to Mr. Mills, a witness (“D.J.”) had come
forward who could corroborate the real offender’s testimony. According to D.J., a few days after
Mr. Mills left the gun and mask at D.J.’s home, the person who actually committed the offenses
took the items without D.J.’s knowledge. When Mr. Mills came back later to retrieve the items,
he discovered they were missing. D.J. contacted the real offender, who admitted taking the gun
and mask from his house. D.J. also averred that the reason he did not come forward sooner was
because he had assumed the testimony of the actual offender would be sufficient to exonerate Mr.
Mills.
{¶4} The trial court found that Mr. Mills was not unavoidably prevented from
discovering the new evidence. It, therefore, denied his motion for leave and his petition for post-
conviction relief. Mr. Mills has appealed, assigning two errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION AFTER FAILING TO
GRANT LEAVE [ON A NEW TRIAL MOTION FOR LEAVE PURSUANT TO
CRIM.R.33(B)].
{¶5} In his first assignment of error, Mr. Mills argues that the trial court incorrectly
denied his motion for leave to file a delayed motion for new trial. Criminal Rule 33(A)(6) provides
that a trial court may grant a new trial if “new evidence material to the defense is discovered which
the defendant could not with reasonable diligence have discovered and produced at the trial.”
Ordinarily, a motion for new trial must be filed within 120 days “after the day upon which the
verdict was rendered[].” Crim.R. 33(B). If a defendant can establish “by clear and convincing
proof” that he was “unavoidably prevented from the discovery of the evidence upon which he must
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rely,” however, then he may file a motion for new trial “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.” Id.{¶6} “Unavoidable delay results when the party had no knowledge of the existence of
the ground supporting the motion for a new trial and could not have learned of the existence of
that ground within the required time in the exercise of reasonable diligence.” State v. Covender,
9th Dist. Lorain No. 11CA010093, 2012-Ohio-6105, ¶ 14, quoting State v. Rodriguez–Baron, 7th
Dist. Mahoning No. 12–MA–44, 2012-Ohio-5360, ¶ 11. “Clear and convincing proof requires
more than a mere allegation that a defendant has been unavoidably prevented from discovering the
evidence he seeks to introduce as support for a new trial.” Id., quoting State v. Covender, 9th Dist.
Lorain No. 07CA009228, 2008-Ohio-1453, ¶ 6. “This Court reviews a trial court’s decision to
deny leave to file an untimely motion for a new trial without a hearing for an abuse of discretion.”
State v. Grad, 9th Dist. Medina No. 22CA0011-M, 2022-Ohio-4221, ¶ 8. “An abuse of discretion
is present when a trial court’s decision ‘is contrary to law, unreasonable, not supported by
evidence, or grossly unsound.’” Id., quoting Menke v. Menke, 9th Dist. Summit No. 27330, 2015-
Ohio-2507, ¶ 8.
{¶7} In its order, the trial court noted that Mr. Mills had testified via affidavit that he was
aware of D.J.’s knowledge before trial but that his counsel at the time advised him that D.J.’s
testimony would not be necessary. Mr. Mills also testified that he attempted to obtain an affidavit
from D.J. following his conviction, but D.J. would not provide one until his appeals failed. The
trial court concluded that Mr. Mills was not unavoidably prevented from discovering the alleged
new evidence because he knew D.J.’s identity, whereabouts, and the substance of his testimony
before trial.
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{¶8} In his brief, Mr. Mills focuses on the criteria for granting a motion for new trial not
the criteria for a motion for leave to file an untimely motion for new trial. See State v. Petro, 148
Ohio St. 505 (1947), syllabus. He also acknowledges that he has been in contact with D.J.
throughout the duration of his sentence. He asserts, however, that D.J. was not ready to assist in
his defense until the time that he filed his motion.
{¶9} According to D.J.’s affidavit, he did not come forward earlier because he assumed
the testimony of the real offender would be enough to free Mr. Mills. He does not express any
reluctance to assist Mr. Mills or indicate that he ever refused to participate in Mr. Mills’s defense.
{¶10} Upon review of the record, we cannot say that the trial court incorrectly determined
that Mr. Mills failed to establish by clear and convincing evidence that he was unavoidably
prevented from discovering the evidence upon which he intended to rely in his motion for new
trial. We, therefore, conclude that the court did not improperly exercise its discretion when it
denied Mr. Mills’ motion for leave to file a motion for new trial. Mr. Mills’s first assignment of
error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION AFTER FAILING TO
ACKNOWLEDGE [THAT] APPELLANT’S PETITION FOR POST-
CONVICTION RELIEF [WAS TIMELY] PURSUANT TO R.C.
2953.23(A)(1)(a).
{¶11} In his second assignment of error, Mr. Mills argues that the trial court incorrectly
denied his petition for post-conviction relief. Mr. Mills acknowledges that, because his petition is
successive, he had to satisfy the requirements of Revised Code Section 2953.23(A)(1)(a) for the
trial court to consider it. Under that section, Mr. Mills had to show (1) that he was “unavoidably
prevented” from discovering the facts he relied on, or (2) that “the United States Supreme Court
[has] recognized a new federal or state right that applies retroactively to persons in [his]
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situation[.]” R.C. 2953.23(A)(1)(a). He also had to show “by clear and convincing evidence that,
but for constitutional error at trial, no reasonable factfinder would have found [him] guilty of the
offense of which [he] was convicted * * *.” R.C. 2953.23(A)(1)(b). We review whether a trial
court had jurisdiction to entertain an untimely, second, or successive petition for post-conviction
relief de novo. State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, ¶ 38.
{¶12} As with Mr. Mills’s motion for leave to file a motion for new trial, the trial court
determined that he was not unavoidably prevented from discovery of the facts upon which he
relied, noting that Mr. Mills had been in contact with D.J. repeatedly since his trial. Mr. Mills
argues that D.J. was reluctant to become involved in the matter, however, until he was mentally,
physically, and spiritually prepared to do so. Mr. Mills notes that, in State v. Martin, 2d Dist.
Montgomery No. 20024, 2004-Ohio-73, the Second District Court of Appeals concluded that a
petition for post-conviction relief was not untimely even though the defendant knew at the
conclusion of his trial that there were alibi witnesses his trial counsel could have called. It reasoned
that the petition could not have been filed earlier because, “[a]bsent affidavits from the alibi
witnesses themselves, the trial court almost certainly would have denied Martin’s claim on the
basis that it was unsupported by anything other than his own self-serving affidavit.” Id. at ¶ 15.
{¶13} The trial court distinguished Martin because the witnesses in that case would have
provided an alibi for the defendant while the testimony of D.J. would only corroborate the
testimony of the alleged real offender. It also noted that, despite his effort, the defendant in Martin
lost contact with the alibi witnesses following his conviction until they contacted him. Mr. Mills,
on the other hand, was in repeated contact with D.J. following his trial.
{¶14} Upon review of the record, we agree with the trial court that Mr. Mills did not
establish that he was unavoidably prevented from discovering the facts that he was relying on in
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his successive petition for post-conviction relief. The trial court, therefore, did not have authority
to consider the merits of the petition. Mr. Mills’s second assignment of error is overruled.
III.
{¶15} Mr. Mills’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
STEVENSON, J.
CONCUR.
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APPEARANCES:
PHIL D. MILLS, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant
Prosecuting Attorney, for Appellee.