[Cite as State v. Hillman, 2020-Ohio-5597.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
No. 20AP-244
Plaintiff-Appellee, : (C.P.C. No. 13CR-6648)
v. : & No. 20AP-245
(C.P.C. No. 13CR-6206)
Robert L. Hillman, :
(ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 8, 2020
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 Crim.R. 33, and in
the context of this record was not required to hold a hearing on the matter. We see no
demonstrated abuse of discretion, and we will affirm the trial court's judgment.
{¶ 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,
Nos. 20AP-244 & 20AP-245 2
and receiving property in Franklin C.P. No. 13CR-6648 (involving an incident on East Town
Street). The trial court sentenced him to 18 years in prison. See February 25, 2014 judgment
entries. Mr. Hillman filed a timely Crim.R. 33 motion for new trial on March 4, 2014 that
claimed, in part, witness and prosecutorial misconduct based on allegedly false testimony
provided by the state's witness in the East Town Street case (an Officer Larrison). The trial
court denied Mr. Hillman's motion.
{¶ 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 R.C. 2935.09. Those various
efforts were ultimately unsuccessful. See State v. Hillman, 10th Dist. No. 17AP-256, 2017-
Ohio-8217, discretionary appeal denied, 152 Ohio St.3d 1467, 2018-Ohio-1795, and 157
Ohio St.3d 1408, 2019-Ohio-3731 (finding Mr. Hillman's motion to vacate sentence to be
an untimely postconviction petition and affirming the trial court's denial of the petition);
State v. Hillman, 10th Dist. No. 18AP-696 (May 3, 2019) (memorandum decision),
discretionary appeal denied, 158 Ohio St.3d 1422, 2020-Ohio-647 (affirming trial court
judgment denying Mr. Hillman's petition for postconviction relief); Hillman v. Larrison,
10th Dist. No. 18AP-896, 2019-Ohio-2537, discretionary appeal denied, 157 Ohio St.3d
1497, 2019-Ohio-4840 (affirming trial court judgment finding Mr. Hillman's accusation by
affidavit filed pursuant to R.C. 2935.09 not meritorious, referring the matter to the
prosecuting attorney, and closing the case); and Hillman v. Larrison, 10th Dist. No. 20AP-
7, 2020-Ohio-4896 (affirming the trial court's denial of Mr. Hillman's motion to vacate
fines and costs).
{¶ 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 Crim.R. 33 motion for a new trial in
Franklin C.P. No. 13CR-6206. He filed the same motion eight days later in Franklin C.P.
Nos. 20AP-244 & 20AP-245 3
No. 13CR-6648. He characterized the motions for leave as "based upon newly discovered
evidence pursuant to Crim.R. 33(A)(2) and Crim.R. 33(B)," describing that evidence as a
"911 or event information sheet the police claimed to testify from" at trial. Motion for Leave
at 1; Hillman Affidavit within Motion for Leave at 4. The trial court denied Mr. Hillman's
motion in both cases, finding Mr. Hillman's request for leave "not well taken" in the East
Town Street case and that it did "not pertain to" the OSU case. March 19, 2020 Decision
and Entry in Franklin C.P. No. 13CR-6648 at 1; March 18, 2020 Decision and Entry in
Franklin C.P. No. 13CR-6206 at 1.
{¶ 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, and 14th amendment rights given by the United 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
Crim.R. 33. See Crim.R. 33; State ex rel. Collins v. Pokorny, 86 Ohio St.3d 70 (1999)
(holding that a trial court has no duty to issue findings of fact or conclusions of law when it
denies a Crim.R. 33 motion for a new trial). Construing Mr. Hillman to argue that the lack
of findings and conclusions constituted error requiring reversal, we would not sustain the
assignment on that basis. The cases he cites do not involve trial court decisions on
Crim.R. 33 motions for leave to file new trial motions; they are not applicable to this
circumstance.
Nos. 20AP-244 & 20AP-245 4
{¶ 8} Mr. Hillman also argues that the trial court should have held a hearing on his
request for leave to file a motion for a new trial. His assignment does not expressly address
that issue and appears focused only on a lack of findings of fact and conclusions of law. But
even if his assignment could be read more broadly, Mr. Hillman has not demonstrated that
the trial court abused its discretion by not holding a hearing in this case.
{¶ 9} Crim.R. 33 permits a convicted defendant to file a motion for a new trial
within 120 days after the day of the verdict on grounds of "newly discovered evidence" that
the defendant could not, with reasonable diligence, have discovered and produced at trial.
Crim.R. 33(A)(6) and (B); State v. Armengau, 10th Dist. No. 16AP-355, 2017-Ohio-197, ¶ 8,
discretionary appeal denied, 149 Ohio St.3d 1434, 2017-Ohio-4396. A trial court may grant
leave to file a motion for new trial based on newly discovered evidence beyond the 120-day
deadline where the defendant can show, by clear and convincing evidence, that he was
unavoidably prevented from discovering the evidence within the time limit. Armengau at
¶ 8. "A party is 'unavoidably prevented' from filing a motion for a new trial if the party 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." State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 19.
{¶ 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
Nos. 20AP-244 & 20AP-245 5
an evidentiary hearing on such a request will not be disturbed on appeal absent an abuse of
discretion. Armengau at ¶ 6, 32-33.
{¶ 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.
Nos. 20AP-244 & 20AP-245 6
{¶ 14} "Most courts, including this court, require the party seeking leave under
Crim.R. 33(B) to file a motion for leave within a reasonable time after discovering the
evidence supporting the motion for new trial." Armengau at ¶ 16. Comparing Ms. Ayler's
loose reference to 2017 with the request for leave filed in February of 2020 shows that
Mr. Hillman waited some two to three years from that point to file the request for leave in
this case. We note that the actual delay between acquisition and filing was even longer: the
record of this appeal shows that Mr. Hillman obtained the 911 event information sheet
sometime in 2016 and references it both in an April 20, 2016 filing associated with his
accusation by affidavit case against Officer Larrison under R.C. 2935.09 and in a
December 2016 postconviction relief motion. See December 19, 2016 Post Conviction
Motion at 1-2; January 4, 2017 Ayler Affidavit at 1; Hillman v. Larrison, 2019-Ohio-3537,
at ¶ 2, 18-20, and Hillman v. Larrison, 10th Dist. No. 17AP-160, 2018-Ohio-184, ¶ 12, 16;
Motion for Leave at 3. While Mr. Hillman appears to refer to the R.C. 2935.09 proceedings
as a reason to excuse his delay, Motion for Leave at 3, he provides, and we find, no reason
the trial court would "lack jurisdiction" to consider a request for leave to file a motion for a
new trial while his R.C. 2935.09 case was pending.
{¶ 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.