State v. Harwell
2019 Ohio 643
Ohio Ct. App.2019Background
- In June 2012 Michael Harwell participated in a drug transaction that led to the alleged kidnapping and shooting of two men; one victim (Miller) was shot multiple times and left in the street. Harwell was indicted on multiple counts including felony murder, kidnapping, felonious assault, and firearm specifications.
- A jury convicted Harwell in June 2013 on multiple counts; after merger the trial court imposed an aggregate sentence of 32 years to life and ordered restitution.
- On direct appeal this court vacated two attempted-felony-murder convictions and remanded for limited resentencing; all other convictions were affirmed. Harwell’s aggregate sentence remained 32 years to life after resentencing.
- In June 2018 Harwell (pro se) filed a motion for leave to file a delayed motion for a new trial, asserting ineffective assistance of trial counsel for failing to inform him of Crim.R. 33(B) time limits and claiming actual innocence of felony murder (arguing the State failed to distinguish felony murder from involuntary manslaughter).
- The trial court denied leave, finding Harwell’s motion relied on arguments that were or could have been raised on direct appeal and that Harwell failed to prove by clear and convincing evidence he was "unavoidably prevented" from timely filing. Harwell appealed the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying leave to file a delayed motion for new trial | State: Harwell failed to show by clear and convincing evidence he was unavoidably prevented from timely filing; his claims were or could have been raised on direct appeal | Harwell: Trial counsel failed to advise him of Crim.R. 33(B) deadlines (ineffective assistance) and he has colorable claims of actual innocence, so untimeliness should be excused | Denied — court did not abuse discretion; Harwell failed to show he was unavoidably prevented from timely filing and his arguments could have been raised on direct appeal |
| Whether counsel’s alleged failure to inform Harwell of filing deadlines establishes unavoidable prevention | State: Ignorance of procedural deadlines does not equal unavoidable prevention | Harwell: Counsel’s omission meant he could not timely file the motion | Rejected — failure to advise on procedural law generally does not satisfy the clear-and-convincing unavoidable-prevention standard |
| Whether the trial court’s unexplained reference to res judicata violated due process | Harwell: Court sua sponte dismissed on res judicata grounds denying due process | State: Court additionally found lack of clear-and-convincing proof of unavoidable prevention | Rejected — denial rested on lack of clear-and-convincing proof as well; not solely on res judicata and no due process violation shown |
| Whether Harwell may raise a hybrid-representation (void-judgment) claim for the first time on this appeal | Harwell: Trial subjected him to hybrid representation, so conviction should be void | State: Issue was not raised below | Rejected — claim not raised in motion for leave; cannot be raised for first time on appeal |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (standard for reviewing abuse of discretion)
- State v. Clay, 108 N.E.3d 642 (Ohio Ct. App. 2018) (counsel’s failure to advise about procedural postconviction mechanisms does not equate to being unavoidably prevented from discovering facts supporting relief)
- State v. Walden, 19 Ohio App.3d 141 (Ohio Ct. App. 1984) (definition of "unavoidably prevented" for post-conviction/new-trial context)
- State v. Halliwell, 134 Ohio App.3d 730 (Ohio Ct. App. 1999) (ignorance of filing deadlines is not an excuse to avoid timeliness requirements)