State v. Gutierrez

[Cite as State v. Gutierrez, 2022-Ohio-2252.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 21AP0033
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
VICTOR GUTIERREZ COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2018 CRC-I 000069
DECISION AND JOURNAL ENTRY
Dated: June 30, 2022
HENSAL, Presiding Judge.
{¶1} Victor Gutierrez appeals from the judgment of the Wayne County Court of
Common Pleas that denied his motion for leave to file a delayed motion for a new trial. This Court
affirms.
I.
{¶2} This Court set forth the factual background of this case in State v. Gutierrez, 9th
Dist. Wayne No. 18AP0043, 2019-Ohio-4626, as follows:
A convicted drug trafficker (“A.P.”) was caught by his probation officer with 5
grams of cocaine and $4,000.00 in cash while on community control. He soon
struck a deal to be paid $550.00 and avoid prosecution by cooperating with the
Medway Drug Enforcement Agency (“Medway”) in an investigation into the
alleged source of his cocaine: Mr. Gutierrez. Through recorded phone calls and
texting, A.P. arranged to purchase cocaine from Mr. Gutierrez, which soon led to a
controlled buy where A.P. made a partial payment of $600.00 cash to Mr.
Gutierrez’s associate (“K.O.”) and received a “brick” of cocaine weighing 140.45
grams. On two separate occasions, and while under surveillance, A.P. met Mr.
Gutierrez and paid him another $3,900.00 cash and $1,500.00 cash, respectively.
The money used by A.P. to pay for the drugs was all documented and supplied by
Medway.
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Mr. Gutierrez was charged with two first-degree felonies–trafficking in cocaine and
possession of cocaine–both of which were accompanied by major drug offender
(“MDO”) specifications.
Id. at ¶ 2-3. The matter proceeded to a bench trial on August 13, 2018. After the trial, “the trial
court granted Mr. Gutierrez’s Crim.R. 29 motion for acquittal as to the possession charge, but then
found him complicit in, and therefore guilty of, the trafficking charge and its attendant MDO
specification.” Id. at ¶ 3. “The court sentenced him to a mandatory prison term of 11 years and
imposed a mandatory fine of $10,000.00.” Id. Mr. Gutierrez filed a direct appeal, and this Court
affirmed his convictions on November 12, 2019. Id. at ¶ 19.
{¶3} On January 22, 2021, almost two and one-half years after the trial, Mr. Gutierrez
filed a pro se motion for leave to file a delayed motion for a new trial. In it, he acknowledged that
the deadline for filing a motion for a new trial under Criminal Rule 33(B) had passed. He argued,
however, that he should be granted leave to file a delayed motion for a new trial because his motion
was based upon newly discovered evidence, and he was unavoidably prevented from filing a
motion for a new trial sooner.
{¶4} More specifically, Mr. Gutierrez argued that on November 6, 2020, he received an
affidavit from his sister indicating that she had recorded a video of a police search of his home that
occurred in November 2017 (i.e., prior to his trial). Mr. Gutierrez argued that this video would
serve to impeach some of the trial testimony of the police who testified that they did not recall
conducting a search of his home, which would undermine their credibility and, accordingly, would
undermine the State’s entire case against him. Mr. Gutierrez admitted that he knew at the time of
trial that the police had searched his home, and that he brought this to the attention of his trial
counsel when the police testified that they had not searched his home. According to Mr. Gutierrez,
his trial counsel told him there was no way of proving that the search occurred, and that – since no
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evidence was obtained and used at trial as a result of that search – there was no benefit in bringing
it to the trial court’s attention. His trial counsel, therefore, did not pursue the issue.
{¶5} Mr. Gutierrez asserted that he spoke with his sister on the phone after his
conviction. In his affidavit attached to his motion for leave, Mr. Gutierrez averred that this
conversation occurred sometime between September and November of 2020. During that call, his
sister told him that she had recorded a video on her cell phone of the police search. Mr. Gutierrez
asserted that, prior to that call, he was unaware that a video existed, and that he never pursued the
issue since his trial counsel told him it would be of no benefit.
{¶6} The State opposed Mr. Gutierrez’s motion for leave and the trial court held a
hearing on the issue of whether Mr. Gutierrez was unavoidably prevented from filing his motion
for a new trial sooner. Mr. Gutierrez’s sister testified at the hearing. According to her, she and
her mother were home at the time of the police search in 2017, but she was not at Mr. Gutierrez’s
trial and was unaware that the police testified that they did not search Mr. Gutierrez’s home. She
testified that she first learned of this when she spoke to Mr. Gutierrez in the Fall of 2018, about
three months after his trial. In her affidavit, however, which she executed on November 3, 2020,
Mr. Gutierrez’s sister averred that she “recently learned” that one of the officers who searched
their home testified that he did not search Mr. Gutierrez’s home. Mr. Gutierrez’s sister testified
that it “took [her] a while” to get the videos, which she did not produce until November 2020.
{¶7} After the hearing, the trial court concluded that Mr. Gutierrez failed to meet his
burden of demonstrating by clear and convincing evidence that he was unavoidably prevented
from filing a timely motion for a new trial. In reaching this conclusion, the trial court found that
Mr. Gutierrez could have discovered the “newly discovered” evidence if he had exercised
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reasonable diligence. Mr. Gutierrez now appeals that decision, raising two assignments of error
for this Court’s review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION IN VIOLATION OF
APPELLANT’S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH
AMENDMENTS WHEN IT DETERMINED APPELLANT FAILED TO
EXERCISE REASONABLE DILIGENCE[.]
{¶8} In his first assignment of error, Mr. Gutierrez argues that the trial court abused its
discretion by determining that he failed to exercise reasonable diligence related to the discovery
of the video of the police search. For the reasons that follow, this Court disagrees.
{¶9} We begin our analysis by noting that Mr. Gutierrez filed a delayed motion for a
new trial along with his motion for leave. “Although a defendant may file his motion for a new
trial along with his request for leave to file such motion, ‘the trial court may not consider the merits
of the motion for a new trial until it makes a finding of unavoidable delay[.]’” State v. Covender,
9th Dist. Lorain No. 11CA010093, 2012-Ohio-6105, ¶ 13, quoting State v. Brown, 8th Dist.
Cuyahoga No. 95253, 2011-Ohio-1080, ¶ 14. This Court’s review on appeal is limited to whether
the trial court erred by denying Mr. Gutierrez’s motion for leave. Accordingly, this Court will not
address the merits of Mr. Gutierrez’s delayed motion for a new trial.
{¶10} “A trial court’s decision to grant or deny a motion for leave to file a delayed motion
for a new trial will not be reversed on appeal absent an abuse of discretion.” State v. Leyman, 9th
Dist. Medina No. 14CA0037-M, 2016-Ohio-59, ¶ 7. “An abuse of discretion implies that the
court’s decision is unreasonable, arbitrary, or unconscionable.” Id., citing Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
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{¶11} When a motion for a new trial is based upon newly discovered evidence, it must be
filed within 120 days “after the day upon which the verdict was rendered[.]” Crim.R. 33(B). If
the motion is not filed within 120 days, the defendant must provide “clear and convincing proof
that the defendant was unavoidably prevented from the discovery of the evidence upon which he
must rely[.]” Id. “While Crim.R. 33(B) does not provide a specific time limit in which defendants
must file a motion for leave to file a delayed motion for new trial, many courts have required
defendants to file such a motion within a reasonable time after discovering the evidence.” State v.
Hill, 5th Dist. Stark No. 2020CA00019, 2020-Ohio-4050, ¶ 24, quoting State v. Griffith, 11th Dist.
Trumbull No.2005-T-0038, 2006-Ohio-2935, ¶ 15; Leyman at ¶ 9 (same).
{¶12} This Court has stated that “[u]navoidable 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.” Leyman at ¶ 8, quoting Covender at ¶ 14. “[C]riminal defendants and their trial counsel
have a duty to make a ‘serious effort’ of their own to discover potential favorable evidence.”
Covender at ¶ 14, quoting State v. Anderson, 10th Dist. Franklin No. 12AP133, 2012-Ohio-4733,
¶ 14.
{¶13} As previously noted, Mr. Gutierrez was convicted on August 13, 2018. He filed
his motion for leave to file a delayed motion for a new trial almost two and one-half years later on
January 22, 2021. According to him, he always knew that the police searched his home, but he
did not know his sister had a video of the search until he spoke with her after his conviction.
According to his sister’s testimony at the hearing on Mr. Gutierrez’s motion, she spoke with Mr.
Gutierrez in the Fall of 2018, which is when she learned that the police testified that they did not
search Mr. Gutierrez’s home. She did not produce the video or her affidavit until two years later
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in November 2020. According to Mr. Gutierrez, he did not pursue any evidence related to the
search of his home because his trial counsel told him there would be no way to prove that the
search occurred and, since no evidence from that search was introduced at trial, there would be no
benefit to bringing it to the trial court’s attention.
{¶14} Despite Mr. Gutierrez’s arguments to the contrary, this Court cannot say that the
trial court abused its discretion when it denied his motion for leave to file a delayed motion for a
new trial. Mr. Gutierrez admitted that he always knew the police searched his home. While we
are mindful of his assertions that his trial counsel chose not to pursue any evidence in that regard,
Mr. Gutierrez had the duty to make a serious effort to discover potentially favorable evidence. See
Covender at ¶ 14. Moreover, his sister testified that she spoke with Mr. Gutierrez in the Fall of
2018, which is when she learned that the police testified at Mr. Gutierrez’s trial that they did not
search his home. Mr. Gutierrez did not file his motion for leave, however, until January 2021.
While his sister did testify that it took some time to locate the videos, Mr. Gutierrez knew, at the
latest, in the Fall of 2018, that his sister was present for the police search. We cannot say that the
trial court erred by concluding that Mr. Gutierrez failed to meet his burden of demonstrating by
clear and convincing evidence that he was unavoidably prevented from filing a timely motion for
a new trial. Mr. Gutierrez’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
APPELLA[TE] COUNSEL ON HIS DIRECT APPEAL OF RIGHT, WHEN
COUNSEL FAILED TO INFORM HIM OF POTENTIAL POST-CONVICTION
ISSUES AND THE MANDATORY PROCEDURES INVOLVED WITH SUCH
PROCEEDING.
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{¶15} In his second assignment of error, Mr. Gutierrez argues that he received ineffective
assistance of appellate counsel1 because his appellate counsel did not inform him of potential post-
conviction issues, or the procedures involved with those issues. For the reasons that follow, this
Court disagrees.
{¶16} As this Court has stated, filing an application for reopening under Appellate Rule
26(B) “is the appropriate remedy for asserting a claim for ineffective assistance of appellate
counsel.” State v. Hale, 9th Dist. Summit No. 29096, 2019-Ohio-3466, ¶ 10, citing State v. Buck,
9th Dist. Summit No. 27597, 2017-Ohio-273, ¶ 19. His claim for ineffective assistance of
appellate counsel, therefore, is not properly before this Court. Id.{¶17} Moreover, Mr. Gutierrez’s reliance on Gunner v. Welch, 749 F.3d 511 (6th
Cir.2014) is misplaced. There, in the context of federal habeas relief, the Sixth Circuit held that
the defendant’s appellate counsel rendered ineffective assistance by not informing the defendant
of the time requirements for filing a petition for post-conviction relief. Id. at 520. The Sixth
Circuit, therefore, concluded that the defendant’s appellate counsel’s ineffective assistance
“excuse[d] the procedural default that would otherwise subject the petition for habeas corpus to
dismissal.” Id. Like other state appellate courts that have considered Gunner, we conclude that
its holding is inapplicable to the case before us. See State v. Clark, 7th Dist. Mahoning No. 08
MA 15, 2015-Ohio-2584, ¶ 32 (addressing Gunner and concluding that “a procedural default in
filing for habeas relief does not provide an excuse for filing an untimely application for reopening
1
We note that Mr. Gutierrez’s merit brief also discusses his trial counsel. As this Court
has stated, however, “an appellant’s assignment of error provides this Court with a roadmap
to guide our review.” In re Guardianship of Bakhtiar, 9th Dist. Lorain No. 16CA010932, 2017-
Ohio-5835, ¶ 9, quoting Taylor v. Hamlin–Scanlon, 9th Dist. Summit No. 23873, 2008-Ohio-1912,
¶ 12.
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in a state appellate court[.]”); State v. Taylor, 8th Dist. Cuyahoga No. 102020, 2015-Ohio-1314, ¶
14-15 (declining to apply Gunner).
{¶18} In light of the foregoing, Mr. Gutierrez’s second assignment of error is overruled.
III.
{¶19} Mr. Gutierrez’s assignments of error are overruled. The judgment of the Wayne
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 Wayne, 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
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CARR, J.
SUTTON, J.
CONCUR.
APPEARANCES:
VICTOR GUTIERREZ, pro se, Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and MICHAEL COOPER, Assistant Prosecuting
Attorney, for Appellee.