State v. Smith , 2021 Ohio 4388 ( 2021 )

[Cite as State v. Smith, 2021-Ohio-4388.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210235
TRIAL NOS. B-1601998
Plaintiff-Appellee, : B-1507289-A
vs. : O P I N I O N.
KENT SMITH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 15, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Kent Smith, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Kent Smith appeals the Hamilton County
Common Pleas Court’s judgment denying his Crim.R. 33 motion for a new trial. We
affirm the court’s judgment, because Smith did not seek leave to file the motion out
of time, and the record shows that leave was not warranted.
Procedural Posture
{¶2} Smith and Michelle Brown were charged with multiple felonies in two
indictments in connection with a string of burglaries, robberies, and assaults in
December 2015. Prior to trial, Smith’s appointed counsel moved for, and the trial
court ordered, the appointment of DNA Diagnostics Center (“DDC”) to provide
expert assistance concerning DNA-testing of a handgun recovered in a search of
Brown’s backyard and a burglary victim’s assault rifle recovered in a search of
Smith’s residence.
{¶3} New counsel was appointed for trial. Smith was found guilty by a jury
in February 2018 and sentenced a month later. Following our decision in the direct
appeal, he stood convicted on two counts of aggravated robbery, one count of
aggravated burglary, three counts of burglary, one count of felonious assault, and
four counts of having weapons while under a disability. See State v. Smith, 1st Dist.
Hamilton No. C-180151, 2019-Ohio-5264, appeals not accepted, 158 Ohio St.3d
1436, 2020-Ohio-877, 141 N.E.3d 251.
{¶4} After his verdicts were returned, but before sentencing, Smith filed a
pro se motion for a new trial. In that motion, he alleged prosecutorial misconduct in
denying him “[his] rebuttal expert witness and D.N.A. test results,” allowing the jury
to see him in handcuffs, and failing to disclose in discovery evidence impeaching
Brown’s credibility.
{¶5} Six months later, Smith filed a “Supplement to Pending Motion for
New Trial,” with the stated purpose of providing “clarity” concerning the assertions
2
OHIO FIRST DISTRICT COURT OF APPEALS
of his presentence new-trial motion. In that “Supplement,” Smith challenged the
state’s DNA-test results showing him as the source of DNA found on swabs taken
from the handgun and assault rifle. He asserted that law enforcement had used false
and perjured documents to get his DNA and had improperly submitted the swabs
instead of the guns for DNA testing.
{¶6} A year later, Smith first raised the matter of his trial counsel’s
effectiveness concerning DNA-testing of the guns. In his petition under R.C. 2953.21
et seq., he sought postconviction relief on the grounds that he had been denied his
constitutional rights to due process, compulsory process, and the effective assistance
of counsel, because his trial counsel failed to submit the guns for testing by DDC and
then lied to the court about her efforts to do so. The common pleas court denied the
petition, and we affirmed, because Smith did not satisfy the statutory requirements
for filing a postconviction petition out of time. State v. Smith, 1st Dist. Hamilton No.
C-190714, 2021-Ohio-2952.
{¶7} In December 2020, Smith filed the motion from which this appeal
derives. In that motion, captioned “Amended Motion for New Trial,” Smith sought a
new trial under Crim.R. 33(A)(1), (3), (5) and (6), on essentially the same grounds
advanced in his postconviction petition. He asserted that his trial counsel had been
ineffective, and that he had been denied his right to compulsory process, when
counsel neglected to adequately review his case to discover that previous appointed
counsel had not sent the guns to DDC for DNA testing. And he asserted that he had
been denied a fair trial, because the state’s expert’s DNA testimony was left
unchallenged, and he was compelled to testify, when trial counsel misled him and the
court about her efforts to secure DNA testing of the weapons by DDC and an analysis
by DDC of the state’s DNA-testing results.
{¶8} Smith’s 2020 motion was supported by outside evidence in the form of
correspondence from March 7 to May 24, 2018, between Smith and the Hamilton
3
OHIO FIRST DISTRICT COURT OF APPEALS
County Public Defender’s Office and between the public defender’s office and DDC.
On March 7, Smith sent a request to the public defender’s office for trial counsel to
file a motion for a new trial on the grounds that the trial court did not rule on his pro
se pretrial motion to suppress and the jury saw him in handcuffs. On April 20, the
public defender’s office responded with a letter advising Smith that DDC had not
produced a DNA report and offering the opinion that trial counsel had been
“ineffective” in not following up on first appointed counsel’s request for DDC to do
so. And on May 24, DDC sent the public defender’s office a letter memorializing the
inquiries made to DDC in Smith’s case by first and second appointed counsel and by
Smith’s father. In that letter, DDC confirmed that first appointed counsel had
requested case-review services, but not a consult, that no report or other work
product had been produced, that Smith’s father had been told in March 2018 that
DDC could discuss the case and work only with counsel, and that second appointed
counsel had left a message on her first attempt at contacting DDC and had not
thereafter returned DDC’s calls.
{¶9} In this appeal from the common pleas court’s “Entry Overruling
Motion for New Trial,” Smith presents two assignments of error that may fairly be
read together to challenge the denial of a new trial without a hearing. We find no
merit to that challenge.
Leave Not Sought or Warranted
{¶10} A new trial may be granted under Crim.R. 33(A) on the ground of newly
discovered evidence, accident or surprise, an error of law, or an irregularity or abuse of
discretion that prevented a fair trial. Crim.R. 33(A)(1), (A)(3), (A)(5), and (A)(6). A
motion for a new trial is directed to the sound discretion of the trial court, and the
court’s decision will not be reversed on appeal unless the court abused that
discretion. See State v. Williams, 43 Ohio St.2d 88, 330 N.E.2d 891 (1975),
paragraph two of the syllabus.
4
OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} A Crim.R. 33(A)(6) motion for a new trial on the ground of newly
discovered evidence must be filed either within 120 days of the return of the verdicts
or within seven days after leave to file a new-trial motion has been granted. A
motion for a new trial on grounds other than newly discovered evidence must be filed
either within 14 days of the return of the verdict or within seven days after the
granting of leave. Leave to file a Crim.R. 33(A)(6) motion out of time may be granted
only upon clear and convincing proof that the movant had been unavoidably
prevented from timely discovering the evidence upon which the motion relies. Leave
to move for a new trial on grounds other than newly discovered evidence may be
granted only upon clear and convincing proof that the movant had been unavoidably
prevented from timely filing a new-trial motion. See Crim.R. 33(B); State v.
Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990); State v. Carusone, 1st Dist.
Hamilton No. C-130003, 2013-Ohio-5034, ¶ 32.
{¶12} Smith’s verdicts were returned on February 20, 2018. Thus, he had
until June 20 to move for a new trial based on newly discovered evidence and until
March 6 to move for a new trial on other grounds. See Crim.R. 33(B).
{¶13} On March 15, 2018, Smith filed his pro se presentence motion for a
new trial. The motion was not timely filed to the extent that it sought a new trial on
grounds other than newly discovered evidence. Smith did not seek leave to move for a
new trial out of time. Nor does the record show that, with respect to those grounds,
leave was warranted.
{¶14} The 2018 motion was timely filed to the extent that it sought a new trial
based on newly discovered evidence. But Smith filed the motion before he was
sentenced and thus while he was represented by counsel. And his trial counsel did
not join in the motion or otherwise indicate support for it. A criminal defendant has
no right to a “hybrid” form of representation, during which he is represented by
counsel, but acts simultaneously as his own counsel. See State v. Smith, 2017-Ohio-
5
OHIO FIRST DISTRICT COURT OF APPEALS
8558, 99 N.E.3d 1230, ¶ 30-32 (1st Dist.), citing State v. Thompson, 33 Ohio St.3d 1,
7, 514 N.E.2d 407 (1987). Therefore, Smith had no right to file, “[s]upplement,” or
“[a]mend[]” his 2018 motion. And the trial court was not required to entertain the
motion. See State v. Ojile, 1st Dist. Hamilton No. C-200340, 2021-Ohio-2955, ¶ 9.
{¶15} Nor was the common pleas court required to entertain Smith’s 2020
“Amended Motion for New Trial” on the merits. Because his 2018 motion for a new
trial was a legal nullity, the filing of his 2020 new-trial motion did not relate back to the
filing of the 2018 motion. See id. Thus, the 2020 motion, filed almost three years
after the return of the verdicts in his case, was filed well outside the time limits
prescribed by Crim.R. 33(B). Smith did not seek leave to file the motion out of time.
And the record does not show that he was unavoidably prevented from timely
discovering the new evidence upon which his motion depended or from timely
moving for a new trial on grounds other than newly discovered evidence. We,
therefore, hold that the court did not abuse its discretion in denying a new trial on
the grounds presented in the 2020 motion.
We Affirm
{¶16} The common pleas court properly declined to entertain Smith’s 2018
motion for a new trial, because that motion was a legal nullity. And the court did not
abuse its discretion in denying, without a hearing, the relief sought in his 2020 new-
trial motion, when that motion was not timely filed, and leave to move for a new trial
out of time was neither sought nor warranted. Accordingly, we overrule the
assignments of error and affirm the judgment of the court below.
Judgment affirmed.
MYERS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
6