2018 Ohio 766
Ohio Ct. App.2018Background
- Michael Hazel was convicted in 2011 of two domestic-violence offenses (consolidated Clark County cases), each enhanced from fourth- to third-degree felonies because the jury found he had prior convictions for (1) domestic violence (2009) and (2) aggravated burglary in 2003 that involved a family or household member.
- The 2003 aggravated-burglary conviction involved victim Heather Kunce; Hazel pleaded guilty in 2003 and later (in 2004) participated in DNA paternity testing that showed he was not the biological father of Kunce’s child.
- Hazel argued in a 2016 pro se motion for leave to file a Crim.R. 33 new-trial motion that the 2004 DNA result is newly discovered evidence that would undermine the enhancement (because the 2003 offense, he says, was not against a family/household member).
- The trial court denied leave to file, finding Hazel could not show he was unavoidably prevented from discovering the DNA result (he knew of it in 2004) and that his 2003 guilty plea conceded the putative-parent relationship for purposes of that offense.
- Appellate counsel filed an Anders brief concluding no nonfrivolous issues; Hazel filed a pro se brief. The Second District affirmed the trial court, granted counsel leave to withdraw, and found no meritorious appellate issues.
Issues
| Issue | Hazel's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Hazel’s 2004 DNA result is "newly discovered evidence" warranting leave to file a Crim.R. 33 motion | DNA showing Hazel is not the child’s father undermines the 2003 offense being against a family/household member and thus the enhancement | Hazel knew of the DNA result in 2004; it is not newly discovered and cannot excuse the Crim.R. 33 filing delay | Denied — not newly discovered; Hazel was aware in 2004, so no unavoidable prevention shown |
| Whether Hazel’s 2003 guilty plea precludes relitigation of whether the victim was a family/household member | The DNA result shows the prior offense did not involve a family/household member, so enhancement is improper | Hazel’s guilty plea acknowledged the putative-family relationship; State need not reprove that at the 2010 trial | Held for State — plea conceded the status for the 2003 offense, so enhancement stands |
| Whether an evidentiary hearing or Basurto test was required before denying leave to file a new-trial motion | Trial court should have held an evidentiary hearing and applied Basurto (challenge based on alleged false testimony/ due process) | The motion’s filings did not, on their face, show unavoidable prevention or otherwise require a hearing; Basurto was inapplicable | Denied — no facial showing to trigger an evidentiary hearing; Basurto irrelevant |
| Whether any other asserted claims (prosecutorial/jury misconduct, ineffective assistance, sufficiency) provide relief on this appeal | Hazel raised various trial-related claims and ineffective-assistance arguments | Many claims barred by res judicata or improper on this collateral/leave-to-file appeal; none affect the leave determination | Denied — claims either procedurally unavailable here or lack merit |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (appointed counsel must file brief identifying any arguable appellate issues; counsel may move to withdraw if none exist)
- United States v. Basurto, 497 F.2d 781 (9th Cir. 1974) (discusses due process concerns where indictment relies on allegedly false testimony)