State v. HillmanState v. Hillman
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
{¶ 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. 13CR-6206 (involving incidents around The Ohio State University) and guilty of burglary, theft,
{¶ 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
{¶ 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
{¶ 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 , and14th amendment rights given by theUnited 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
{¶ 9}
{¶ 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-Ohio-4468, ¶ 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
{¶ 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.
{¶ 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.