[Cite as State v. Smith, 2023-Ohio-3954.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220583
TRIAL NO. B-1505510
Plaintiff-Appellee, :
O P I N I O N.
vs. :
WILLIAM A. SMITH, SR., :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 1, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
William A. Smith, Sr., pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Presiding Judge.
{¶1} Defendant-appellant William A. Smith, Sr., appeals the Hamilton
County Common Pleas Court’s judgment denying his Crim.R. 33(B) motion for leave
to file a motion for a new trial. We affirm.
I.
{¶2} Following a jury trial in 2017, Smith was convicted of two counts of
aggravated murder, felonious assault with firearm and repeat-violent-offender
specifications, aggravated robbery, and two counts of having a weapon while under a
disability. At trial, he admitted to killing his two elderly friends, but claimed it was in
self-defense. Smith unsuccessfully challenged his convictions in his direct appeal and
in a 2018 petition for postconviction relief. See State v. Smith, 1st Dist. Hamilton No.
C-170028, 2018-Ohio-2504 (affirming convictions, but remanding for consecutive-
sentences findings); State v. Smith, 1st Dist. Hamilton No. C-190162, 2020-Ohio-1370
(court lacked jurisdiction to consider petition where petitioner could not demonstrate
unavoidable prevention in discovering evidence supporting claims).
{¶3} In September 2021, Smith moved for leave to file a new-trial motion on
the following grounds: irregularity in the proceedings, see Crim.R. 33(A)(1),
prosecutorial misconduct, see Crim.R. 33(A)(2), and an error of law occurring at trial,
see Crim.R. 33(A)(5). Insofar as we can ascertain, Smith argues that the investigating
detectives had Smith’s “discharge papers” from the hospital (Smith was treated for
injuries he had sustained during his attack on the victims) and these medical records
demonstrate his “state of mind” the day of the murder. Smith contends that his
discharge papers as well as items contained in his case file maintained by his trial
counsel support his claim of self-defense and prove that witnesses committed perjury
at his trial. In support of his motion, Smith attached (1) motions from July and August
of 2018 seeking permission to file a public-records request for the recording of his
April 2018 telephone conversation with his trial counsel, the list of exhibits from his
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jury trial, and all “court related documentation listed on the docket sheet and related
to said case No. B-1505510”; (2) an October 2018 motion to compel his attorney to
produce his case file; (3) a January 2019 motion to compel the common pleas court to
rule on his public-records request; (4) two notices from the clerk of courts indicating
that it had received Smith’s request for public records; (5) several “notices of
withholding” from the prison mailroom indicating that Smith had received the
“discovery he requested” but it was more than the allowed five-page limit and was
being returned to sender; (6) a “withdrawal slip” showing that money had been
deducted from Smith’s prison account to return documents to the sender; (7) a letter
from a family member’s attorney discussing a request to send “case documents” to
Smith; (8) a prison conduct report; (9) excerpts from Smith’s interview with police at
the hospital; (10) Smith’s emergency-room medical records from the day of the
murders indicating that “pt does not want to talk to the police”; and (11) three
photographs showing blood stains and a picture of a neck wound.
{¶4} The common pleas court summarily denied the motion for leave to file
a new-trial motion, and Smith timely appealed.
II.
{¶5} In a single assignment of error, Smith argues that the common pleas
court “erred as a matter of law by abusing its discretion in overruling without an
evidentiary hearing defendant’s Crim.R. 33(B) motion for leave to file a Crim.R.
33(A)(1)(2) and (5) [motion for new trial].” We are unpersuaded.
{¶6} We review the denial of a Crim.R. 33(B) motion without an evidentiary
hearing for an abuse of discretion. State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-
3991, 205 N.E.3d 513, ¶ 29; State v. Mincy, 1st Dist. Hamilton No. C-060041, 2007-
Ohio-1316, ¶ 16. An abuse of discretion is more than an error of law or judgment; it
implies that the court’s attitude is unreasonable, arbitrary, or unconscionable. Id.,
citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
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{¶7} A motion for new trial under Crim.R. 33(A)(1), (2) and (5) must be filed
within 14 days of the verdict “unless it is made to appear by clear and convincing proof
that the defendant was unavoidably prevented from filing his motion for new trial * *
*.” Crim.R. 33(B). “Unavoidably prevented” means “the party had no knowledge of
the existence of the ground supporting the motion for new trial and could not have
learned of the existence of that ground within the time prescribed for filing the motion
for new trial in the exercise of reasonable diligence.” State v. McKnight, 2021-Ohio-
2673, 176 N.E.3d 802 (4th Dist.), ¶ 11, citing State v. Walden, 19 Ohio App.3d 141, 145-
146, 483 N.E.2d 859 (10th Dist.1984). In determining whether a defendant has
exercised reasonable diligence, the defendant must describe all investigative actions
undertaken within the 14-day period for timely filing a Crim.R. 33(A)(1), (2) and (5)
motion and why he was unavoidably prevented from discovering the grounds for his
new-trial motion before that time period had elapsed. See State v. Cashin, 10th Dist.
Franklin No. 17AP-338, 2017-Ohio-9289, ¶ 17.
{¶8} Smith’s jury verdict was entered on January 23, 2017. He did not file
his motion for a new trial until four years later. Smith argues that he was unavoidably
prevented from filing his new-trial motion until now because he only recently received
his case file from counsel. It is unclear what documents Smith received other than his
medical records from his emergency-room visit the day of the murders and some
exhibits from his trial, including photographs of the injuries to the victims and himself.
But we hold that Smith has not demonstrated that he was unavoidably prevented from
obtaining this information and, in turn, discovering the grounds of his new-trial
motion until recently. All the information or evidence, namely Smith’s medical records
and exhibits from his trial, were in existence and available to Smith at trial and within
14 days following the jury’s verdict, regardless of whether he sought to access the
information at that time. His evidence of unavoidable prevention merely shows that
he sought to access the information in his case beginning in July 2018, not that he was
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OHIO FIRST DISTRICT COURT OF APPEALS
prevented from accessing that information during the time prescribed to file a motion
for a new trial.
III.
{¶9} Because Smith was not unavoidably prevented from discovering the
grounds of his new-trial motion within the appropriate timeframe, we overrule his
single assignment of error and affirm the common pleas court’s judgment.
Judgment affirmed.
BERGERON and KINSLEY, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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