State v. Smith , 2019 Ohio 5350 ( 2019 )

[Cite as State v. Smith, 2019-Ohio-5350.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180439
TRIAL NO. B-1506673
Plaintiff-Appellee, :
vs. :
MAURICE SMITH, :
Defendant-Appellant. :
STATE OF OHIO, : APPEAL NO. C-180604
TRIAL NO. B-1506673
Plaintiff-Appellee, :
vs. : O P I N I O N.
MAURICE SMITH, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: December 27, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Maurice Smith, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} This pair of appeals traces back to defendant-appellant Maurice
Smith’s 2016 convictions, where a jury found him guilty of burglary, various drug-
related offenses, and tampering with evidence. On direct appeal, we affirmed his
convictions but remanded for resentencing to address an allied offenses issue. See
State v. Smith, 2017-Ohio-8558, 99 N.E.3d 1230 (1st Dist.). During the course of our
opinion, we specifically rejected his argument that the trial court erred in failing to
address his pro se motions (because counsel represented him). In the wake of our
decision, Mr. Smith filed three motions relevant to this appeal, a petition for
postconviction relief (with a request for an evidentiary hearing), a motion for leave to
file a motion for a new trial, and a motion for a new trial, largely raising issues that
we already decided in the direct appeal and without offering any material evidence
beyond that before the court at the time of trial. The trial court denied relief, and we
affirm its judgments for the reasons explained below.
I.
{¶2} On direct appeal, Mr. Smith asserted two challenges relevant to the
appeals at hand: first, that the trial court erred by neglecting to rule on his pro se
motions, and second, that his counsel was ineffective by refusing to adopt the pro se
motions. Smith at ¶ 30, 54. During the trial court proceedings, despite being
represented by counsel at all times, Mr. Smith lobbed in numerous pro se motions.
Id. at ¶ 30. The court declined to rule on these motions because Mr. Smith’s counsel
refused to adopt them, maintaining that they lacked merit. Id. at ¶ 8-11. On appeal,
we affirmed the trial court’s decision, reasoning that although a defendant indeed
enjoys a right to counsel as well as a right to proceed pro se, a defendant retains no
right to “hybrid representation” (i.e., acting as his own lawyer while simultaneously
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OHIO FIRST DISTRICT COURT OF APPEALS
being represented by counsel). Id. at ¶ 31. The trial court therefore did not run afoul
of any constitutional obligations by declining to address his pro se motions under
these circumstances. Id. We likewise rejected Mr. Smith’s ineffective assistance of
counsel claim, finding that counsel’s refusal to adopt pro se motions amounted to
little more than trial strategy. Id. at 57.
{¶3} In his petition for postconviction relief, Mr. Smith attacked the
effectiveness of his counsel for, among other things, failing to challenge the
credibility of witnesses and neglecting to question the chain of custody concerning
pieces of the state’s evidence. But most of what he attached to his filing was already
in the record during the initial trial proceedings. A few months after this initial
motion, Mr. Smith sought to amend his petition, asserting an additional due process
claim based upon the court subjecting him to so-called “hybrid representation.”
Rather than address Mr. Smith’s motion to amend, the trial court instead ruled solely
on his initial petition for postconviction relief, denying his request based upon res
judicata grounds and his failure to muster probative evidence outside of the existing
record to support his arguments.
{¶4} Similarly, in his motion for leave to file a motion for a new trial (and
his motion for a new trial filed a few days later), Mr. Smith largely parroted these
claims, maintaining his counsel exposed him to “hybrid legal representation” and
failed to inform him of the filing deadline for a motion for a new trial. But these
motions met the same fate as his petition, as the trial court denied them both.
{¶5} Mr. Smith now appeals pro se, challenging both the trial court’s order
denying his petition for postconviction relief and his motion for leave to file a motion
for a new trial (as well as his motion for a new trial). For simplicity’s sake, we
address the two appeals together, ultimately affirming both of the trial court’s orders.
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OHIO FIRST DISTRICT COURT OF APPEALS
II.
{¶6} Turning first to his petition for postconviction relief, Mr. Smith asserts
five assignments of error challenging the court’s denial of his petition without an
evidentiary hearing, all of which fall into one of two categories—ineffective assistance
of counsel or a denial of due process. Because a trial court retains discretion as to
whether a defendant should receive an evidentiary hearing before the denial of his
petition, we review Mr. Smith’s challenges under an abuse of discretion standard.
See State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 52 (“We
established in Calhoun that a court reviewing the trial court’s decision in regard to its
gatekeeping function should apply an abuse-of-discretion standard.”).
{¶7} R.C. 2953.21 frames our review of a postconviction petition. See State
v. Pickens, 2016-Ohio-5257, 60 N.E.3d 20, ¶ 7 (1st Dist.) (“R.C. 2953.21 et seq.
governs the proceedings on a postconviction petition.”). As Mr. Smith properly
notes, R.C. 2953.21(A) entitles a defendant to postconviction relief if the petition is
timely and the court finds “there was such a denial or infringement of the rights of
the [petitioner] as to render the judgment void or voidable under the Ohio
Constitution or the United States Constitution.” State v. Perry, 10 Ohio St.2d 175,
226 N.E.2d 104 (1967), paragraph four of the syllabus; see R.C. 2953.21(A)(1)(a).
While no one disputes the timeliness of his filing, Mr. Smith overlooks the fact that
R.C. 2953.21 does not automatically entitle a defendant to a hearing on his petition.
See State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999) (“According to
the postconviction relief statute, a criminal defendant seeking to challenge his
conviction through a petition for postconviction relief is not automatically entitled to
a hearing.”); R.C. 2953.21(D). In fact, before granting a hearing the court must
consider whether the defendant sets forth “sufficient operative facts to demonstrate
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OHIO FIRST DISTRICT COURT OF APPEALS
substantive grounds for relief,” considering the record and any evidence attached to
the petition (i.e., affidavits, reports, documentary evidence) to make this
determination. State v. Hendrix, 1st Dist. Hamilton No. C-160887, 2018-Ohio-3754,
¶ 6; R.C. 2953.21(D).
{¶8} If the defendant simply recycles his arguments from direct review,
presenting a claim “that was raised or could have been raised” previously without
any new evidence, then res judicata generally bars review of the claim in a
postconviction proceeding. See State v. Carter, 1st Dist. Hamilton No. C-170655,
2019-Ohio-1749, ¶ 12, quoting Perry at paragraph nine of the syllabus (“Under the
doctrine of res judicata, a judgment of conviction bars a defendant from raising in
any proceeding, other than a direct appeal from that judgment, any claim ‘that was
raised or could have been raised’ in the direct appeal.”). Of course, res judicata can
only bar a postconviction claim if, during direct appeal, the matter “could fairly have
been determined” based only upon the trial record and with no need of external
evidence. Carter, citing Perry at paragraph nine of the syllabus (“Thus, res judicata
bars a postconviction claim that could fairly have been determined in the direct
appeal, based upon the trial record and without resort to evidence outside the
record.”).
{¶9} While difficult to decipher, Mr. Smith’s first four assignments of error
in essence challenge the trial court’s order denying his petition without an
evidentiary hearing, arguing that the use of so-called “hybrid representation”
violated his rights to due process and the effective assistance of counsel, as well as
asserting his counsel was ineffective for failing to question the chain of custody
regarding certain evidence at trial. Mr. Smith now wields the “hybrid
representation” language from our opinion in the hopes of trying to fashion a new
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OHIO FIRST DISTRICT COURT OF APPEALS
right to support his postconviction petition—the right to not be subject to “hybrid
representation.” See Smith, 2017-Ohio-8558, 99 N.E.3d 1230, at ¶ 31.
{¶10} But, of course, he was not subjected to hybrid representation at all—
we explained that he had no right to such representation. Thus, the premise of his
arguments rests on a fundamental misunderstanding of the concept of “hybrid
representation.” But no matter the precise contours of Mr. Smith’s argument, res
judicata bars all of his postconviction claims as to his representation at trial and his
pro se motions. In fact, on direct appeal, this court addressed Mr. Smith’s challenges
to the trial court by its refusal to rule upon his pro se motions, as well his argument
that trial counsel was ineffective for failing to adopt his pro se motions. See id. at ¶
30-34, 57 (“Once Smith’s counsel determined the motion was meritless, the trial
court did not err by failing to address Smith’s pro se motion.”). We see no issue in
his appellate brief or underlying motion on this topic that could not “fairly have been
determined” on direct appeal without reference to outside evidence (none of which
Mr. Smith provides anyway).
{¶11} The same holds true for his ineffective assistance claim because Mr.
Smith does not rely on evidence outside of the trial record to attempt to demonstrate
the ineffectiveness of his trial counsel.1 See State v. Gholston, 1st Dist. Hamilton No.
C-020557, 2003-Ohio-2758, ¶ 10, citing State v. Cole, 2 Ohio St.3d 112, 113-114, 443
N.E.2d 169 (1982) (holding that defendant’s ineffective assistance of counsel claim
was not subject to dismissal under res judicata because “[the defendant] offered
1 Similar to his “hybrid representation” argument, we also hold res judicata bars Mr. Smith’s claim
that his counsel was ineffective for failing to question the chain of custody of certain narcotic
evidence used at trial. Once again, Mr. Smith does not rely upon any evidence outside of the trial
record to support his claim, and he possessed the opportunity to raise this alleged failure on
direct appeal, adding it to the litany of challenges to his trial counsel’s representation. See Smith
at ¶ 53-58.
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OHIO FIRST DISTRICT COURT OF APPEALS
outside evidence in support of his postconviction challenge to trial counsel’s
performance, and * * * the claim depended for its resolution upon such evidence.”).
{¶12} Therefore, because this court already determined, or could have
determined, these ineffective assistance of counsel issues on direct appeal, res
judicata bars Mr. Smith’s postconviction claims for relief. Accordingly, we overrule
the first four assignments of error, holding the court did not abuse its discretion in
denying Mr. Smith’s petition without an evidentiary hearing.
{¶13} Turning to Mr. Smith’s final assignment of error, he seemingly raises a
due process issue, insisting that the trial court denied him due process when it failed
to rule on his motion to amend his petition. Generally, when a trial court fails to rule
on a pending motion, we presume the court elected to overrule it. See State v.
Guenther, 9th Dist. Lorain No. 06CA008914, 2007-Ohio-681, ¶ 12 (“We presume by
the trial court’s silence that Appellant’s motion for leave to amend his petition for
post-conviction relief was denied.”). We accordingly presume that the trial court
denied Mr. Smith’s motion to amend his petition and see no error in this decision
since the motion to amend raises the same “hybrid representation” argument we just
discussed above. See State v. Campbell, 8th Dist. Cuyahoga No. 99936, 2014-Ohio-
499, ¶ 19 (holding that because “[n]one of the proposed amendments would have
raised issues that were not barred by res judicata,” the court did not abuse its
discretion in failing to rule on the motion to amend prior to dismissal).
{¶14} We accordingly overrule all five of Mr. Smith’s assignments of error
and affirm the trial court’s order denying his petition for postconviction relief.
III.
{¶15} We now consider Mr. Smith’s appeal of the trial court’s order denying
his motion for leave to file a motion for a new trial and motion for a new trial, which
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OHIO FIRST DISTRICT COURT OF APPEALS
we again review under an abuse of discretion standard. See State v. Thomas, 2017-
Ohio-4403, 93 N.E.3d 227, ¶ 2 (1st Dist.). Mr. Smith presents two assignments of
error, in essence asserting the trial court erred in denying his motions when he set
forth sufficient grounds—ineffective assistance of counsel and noncompliance with
Crim.R. 44—for a new trial. While Mr. Smith’s motion for leave below argued
ineffective assistance of counsel, his claim that the trial court’s failure to obtain a
waiver of counsel pursuant to Crim.R. 44 entitles him to a new trial surfaced for the
first time on appeal. Because Mr. Smith did not present this argument to the trial
court below, he waived his right to raise it for the first time on appeal. See State ex
rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278, 611 N.E.2d 830 (1993) (“A
party who fails to raise an argument in the court below waives his or her right to
raise it [on appeal].”). And even if we did entertain Mr. Smith’s Crim.R. 44
argument, as discussed below, it would nevertheless fail.
{¶16} Notably, Crim.R. 33(A) permits a court to grant a new trial under any
one of six enumerated grounds. Relevant to Mr. Smith’s case here, both ineffective
assistance of counsel and violations of Crim.R. 44 fall within Crim.R. 33(A)(1) as
grounds for a new trial. See State v. Hedgecoth, 1st Dist. Hamilton No. C-020480,
2003-Ohio-3385, ¶ 21 (“[T]his court has previously held that a defendant may validly
assert the denial of the effective assistance of counsel as grounds for a new trial
under Crim.R. 33(A)(1)[.]”); State v. Campbell, 132 Ohio App.3d 880, 883, 726
N.E.2d 615 (3d Dist.1999) (“Because this procedural rule bears on a defendant’s
constitutionally protected right to have the assistance of counsel, a defendant tried in
violation of the protections afforded by Crim.R. 44 could not have been tried fairly.”).
But time restraints govern a motion for a new trial on Crim.R. 33(A)(1) grounds,
generally requiring that the motion be filed within 14 days after the verdict. See
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OHIO FIRST DISTRICT COURT OF APPEALS
Crim.R. 33(B) (“Application for a new trial shall be made by motion which, except for
the cause of newly discovered evidence, shall be filed within fourteen days after the
verdict was rendered[.]”). A defendant may effectively extend the limitations period
under certain circumstances by showing “clear and convincing proof that the
defendant was unavoidably prevented from filing his motion for a new trial[.]”
Crim.R. 33(B); State v. Campbell, 2019-Ohio-3142, ___N.E.3d___, ¶ 31 (1st Dist.).
{¶17} Because Mr. Smith filed outside the 14-day period (late by almost two
years), he needed to show that he was unavoidably prevented from filing his motion
for a new trial. However, his appeal and motions below are absolutely devoid of any
explanation as to why he was unavoidably prevented from filing for nearly two years.
Accordingly, because the trial court had no (let alone clear and convincing) evidence
to find unavoidable prevention from filing a timely motion for a new trial, the court
did not err in denying leave to file the motion for a new trial and the motion for a
new trial. We accordingly overrule Mr. Smith’s two assignments of error.
IV.
{¶18} In the appeal numbered C-180439 we overrule Mr. Smith’s five
assignments of error and affirm the trial court’s order denying his petition for
postconviction relief. In the appeal numbered C-180604, we overrule Mr. Smith’s
two assignments of error and affirm the trial court’s order denying his motion for
leave to file a motion for a new trial and his motion for a new trial.
Judgments affirmed.
CROUSE and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry this date.
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